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September 23 2012

The Constitution and Executive War Power

Diana McKibben

IWF writer Charlotte Hays recently referenced an interesting argument raised by Connor Friedersdorf in the Atlantic, that President Obama’s foreign policy is decidedly personal, and therefore a cause for concern. Perhaps this is evident in the President’s personal desire to smooth things over with Middle-Eastern leaders rather than defend free speech after the attack on the US consulate in Benghazi; according to the recent Atlantic piece, President Obama’s decision to bomb Libya last year was personal, too. Friedersdorf argues that President Obama has not only acted personally and thus dangerously, but he has also acted unconstitutionally with regard to Libya:

“Put more succinctly, going to war in Libya was a close call…[President Obama] ran the decision through executive branch and international channels; most people told him not to do it; but if Congress came into the picture at all, it wasn't enough to merit mention in the retelling, and certainly not enough to follow the constitution and put the prospective war to a vote. The people's representatives were excluded.”

According to the Atlantic, we should fear the imperial presidency that President Obama has allegedly promoted by asserting executive authority abroad without Congressional authorization; we’re supposed to fear the hawkish trail that presidential hopeful Mitt Romney could blaze in the future. The truth is that many presidents have made foreign policy decisions, including the decision to use force without Congress’ official declaration of war. Were they all acting unconstitutionally?

An early but important dispute about executive power in foreign policy began when President Washington decided in 1793 that the U.S. would remain neutral despite an obligation to ally with France in a French conflict with Britain. Although Washington decided not to engage in conflict (defying a treaty), this spurred the Pacificus-Helvidius debates between Alexander Hamilton and James Madison about the proper executive and legislative roles in foreign affairs. Madison was especially concerned that Washington’s executive decision threatened Congress’ constitutional power.

Over time, a legitimate spectrum of interpretation has developed on the extent of executive authority to use force. These differing camps have roots in arguments made in the Federalist Papers and at the Constitutional Convention. In Federalist Papers 70 and 74, for example, Hamilton noted that an energetic executive power was critical to the definition of good, republican government, and that directing and employing the common strength (implied by the direction of war) is an essential part in the definition of the executive authority. Jay noted in Federalist 4 however, that personal motivations such as an executive’s thirst for military glory, revenge for personal affronts and ambition could lead him to engage in wars not sanctified by justice or the voice and interests of his people.

Early debates at the Constitutional Convention also reveal that delegates changed the constitutional text from the power to “make” war, to the power to “declare” war, arguably limiting the scope of legislative power in order to allow the President to repel sudden attacks. On the other hand, the power to declare war has always fallen squarely with Congress.

Today, scholar Louis Fisher opposes executive assertion of power abroad without legislative authorization, and he distinguishes between repelling a sudden attack and using force pre-emptively. He argues that for 160 years, presidents at least asked for Congressional approval to use force. It wasn’t until 1950 that this changed when President Truman unilaterally went to war with North Korea. Scholar John Yoo argues that the Constitution speaks differently about domestic versus foreign affairs, and that the executive is not precluded from engaging in foreign affairs or even using force merely because Congress officially “declares” war. Yoo notes that Congress is a slow and deliberative body, but the President is supposed to act decisively and quickly for our safety.

It’s important to point out that the basic constitutional check on the President is Congress’ power of the purse. If it wants to restrain the President, Congress can withhold funding for international ventures it doesn’t support.

While Americans may dispute President Obama’s personal motivations in foreign policy, scholarly camps debate the constitutionality of his efforts abroad. On one end of the spectrum is Louis Fisher, who argues that Congress’ deliberative power should reign, and on the other end of the spectrum is John Yoo, who argues that executive energy is supreme on matters related to war. Both experts point to the constitutionality of their views. By better understanding American history and not ignoring the early debates around this issue, we can better understand the complex nature of the President’s constitutional power in foreign affairs and the use of force.

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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