Guest Opinions

Congress must take its power to make war back from the president

The aircraft carrier USS Ronald Reagan leaves San Diego for a deployment to the Western Pacific in 2011.
The aircraft carrier USS Ronald Reagan leaves San Diego for a deployment to the Western Pacific in 2011. TNS

Editor’s note: This letter to Idaho’s congressional delegation was signed by 300 residents of Boise who attended David Adler’s lectures on “The Constitution and the Presidency.”

As concerned citizens, we write about a matter of great moment — for our nation and national security, the Constitution and the rule of law, and the protection of Congress. The increasing tension between the United States and North Korea, and the growing war of words between President Donald Trump and President Kim Jong Un, coupled with Trump’s assertions of unilateral executive power to initiate military hostilities, unites us in our cause to draw your attention to the constitutional governance of the authority to initiate hostilities. We seek your participation in a remedy that will protect Congress, the Constitution and our country.

We harbor anxiety about the possibility that Trump might assert unilateral presidential power to commence military strikes without prior congressional authorization, as required by Article I, section 8 of the Constitution. Our shared concern is not at all a reflection of political partisanship or party affiliation. On the contrary, we acknowledge that presidents of both parties — Democratic and Republican, liberal and conservative — have, since the Korean War, violated the War Clause, which places in Congress the sole and exclusive authority to initiate military acts against a foreign adversary.

Since 1950, presidents of both parties have usurped the war power, which is constitutionally vested in Congress. At the Constitutional Convention, the framers unanimously agreed that Congress alone, by virtue of the War Clause, should possess the authority to take the nation to war. Delegates reinforced that exclusive congressional power to decide on matters of war and peace when, in the next constitutional provision, “The Marque and Reprisal Clause,” they vested in Congress the authority to initiate military activities falling short of war. By the end of the convention, there was no dissent from the understanding that Congress possesses the sole and exclusive authority over the use of military force.

As commander in chief, the president’s authority was limited to “repelling invasions” of the United States, and to countering attacks on American troops and territories. This understanding, without exception, was reflected in the various state ratifying conventions, the Federalist Papers, and Supreme Court cases in 1800, 1801, 1803, 1804 and 1806. Those decisions, upholding complete congressional control over the initiation of military hostilities, have never been overturned and remain good law.

Congressional acquiescence in the face of presidential aggrandizement of the war power since 1950 represents a grave threat to the principles of republicanism, the Constitution and the rule of law. It also threatens our national security. Our framers were committed to the constitutional conclusion, so eloquently stated by James Wilson, a delegate from Pennsylvania and later a member of the original Supreme Court, that “no one man should hurry us into war.” The wisdom on this score, that the collective judgment of Congress — not the judgment, temperament and perception of a single person — should govern matters of war and peace remains as wise and sound as ever, and perhaps more compelling than it was in 1787, since they could not have glimpsed the possibility that one person might initiate nuclear war, leading to the incineration of the planet.

Justice Robert H. Jackson, in his landmark concurring opinion in The Steel Seizure Case of 1952, justly wrote that Congress alone can prevent the loss of its powers. Members of Congress must resolve to end presidential aggrandizement of the war power, thereby protecting its exclusive constitutional authority over the critical decision to go to war. Accordingly, we ask you to introduce and support the “The War Powers Act of 2017,” or something very similar, as a means of restoring the integrity of the Constitution when our government initiates military hostilities. This measure would restore the framers’ vision, protect Congress and remind all that, as delegates to the Constitutional Convention agreed, presidential violation of foreign affairs powers would constitute an impeachable offense.

David Adler, a scholar on the Constitution and presidential power, is president of the Alturas Institute, which advances the Constitution, civic education and gender equality.

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