Under pre-constitutional Anglo-American imperial law, the King—not the Parliament—enjoyed the “sole prerogative of making war and peace”; acted “as the generalissimo , or the first in military command, within the kingdom”; and “exercised the sole power of raising and regulating fleets and armies”, and “the sole supreme government and command of the militia”. (footnote 1) But other than the office of “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States”, (footnote 2) the Constitution denies the President—the executive in the American Republic analogous to the King in the British Monarchy—all of this authority, and assigns it instead to Congress:
- “the [King’s] sole prerogative of making war and peace” became the Congressional power “[t]o declare War”; (footnote 3)
- “the [King’s] sole power of raising and regulating fleets and armies” became he Congressional powers “[t]o raise and support Armies”, (footnote 4) “[t]o provide and maintain a Navy”, (footnote 5) and “[t]o make Rules for the the Government and Regulation of the land and naval Forces”; (footnote 6)
- “the [King’s] sole supreme government *** of the militia” became the Congressional powers “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”‘ (footnote 7) and “[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States”. (footnote 8)
1.) Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes and Appendix, 1771-1773) Volume 1 at 257, 262 (footnote omitted) (emphasis supplied).
2.) U.S. Const. art II, § 2, cl. 1.
3.) U.S. Const. art I, § 8, cl. 11. Thus [t]he Constitution *** invests the President, as Commander in Chief, with the power to wage war which Congress has declared. Ex parte Quirin, 317 U.S. 1, 26 (1942) (emphasis supplied).
4.) U.S. Const. art I, § 8, cl. 12.
5.) U.S. Const. art I, § 8, cl. 13
6.) U.S. Const. art I, § 8, cl. 14.
7.) U.S. Const. art I, § 8, cl. 15.
8.) U.S. Const. art I, § 8, cl. 16.
A particularly egregious violation of the Constitution was when the inception of the military incursion into Iraq was being debated in the International Relations Committee of the House of Representatives in 2002. Representative Ron Paul, Republican of Texas, offered an amendment in the nature of a substitute for House Joint resolution No. 114, seeking an explicit declaration of war against Iraq in the form of the declaration of war Congress employed against Japan in 1941. (footnote 1) This, not because he favored such a course of action (in fact, he strongly opposed it on constitutional and policy grounds), but in order at least to focus Congressmen’s attention on their constitutional responsibilities, and to preserve Congress’s constitutional authority against encroachment against the President.
The Chairman of the Committee, Representative Henry Hyde, Republican of Illinois, rebuffed Representative Paul, however, asserting the Constitution’s express delegation to Congress of the power “[t]o declare War” (footnote 2) “was one of those things no longer relevant to a modern society”, and was “[i]nappropriate and anachronistic” as a prerequisite to an actual armed invasion of a sovereign foreign nation. (footnote 3) Not to be outdone, the Ranking Minority Member of the Committee, Representative Tom Lantos, Democrat of California, even dismissed Representative Paul’s amendment as “a frivolous proposal” (footnote 4)—making the rejection and the ridicule of the amendment, and the constitutional provision on which it rested, bipartisan. And this, even though no one on the Committee disagreed with Representative Edward Royce, Republican of California, that the Resolution “permits the President to wage war”. (footnote 5)
In the event Congress as a whole agreed with Representative Hyde and Lantos, because it issued no “declar [ ation of] War”, but instead—supinely acquiescing in President George W. Bush’s claim that the “Commander In Chief” (footnote 6) some species of “inherent authority” to launch as well as conduct such an operation—adopted the Joint Resolution, whereby:
“[t]he President is authorized to use the Armed Forces of the United States as he determines to be necessary in order to—
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions against Iraq. (footnote 7)
Having been a Chairman of the House Judiciary Committee, though, Representative Hyde ought to have known that, far from a hoary anachronism, the power of Congress “[t]o declare War” (Article I, Section 8, Clause 11) is one of the most important structural elements of the Constitution, and can be disregarded only at the Nation’s—and the public officials’ own peril. (footnote 8)
1.) Authorization for the Use of Military Force Against Iraq, Markup before the Committee on International Relations, House of Representatives, 107th Congress, 2d Session, on H.J. Res. 114, October 2 and October 3, 2002, Serial No. 107-116, at 122-125.
2.) U.S. Const. art I, § 8, cl. 11.
3.) Authorization for Use of Military Force Against Iraq, ante note 64, at 127, 128.
4.) Id. at 129
6.) See U.S. Const. art II, § 2, cl. 1
7.) H.J. Resolution No. 114, 16 October 2002, Pub. L.107-243, § 3 (a), 116 Stat. 1498, 1501.
8.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, Bookmasters Inc., Ashland, Ohio (2007), page 42.by Dr. Edwin Vieira, Jr., page 26.