Amidst the flood of propaganda these days on behalf of what must be the most breathtaking expansion of Presidential power since Franklin Roosevelt’s New Deal, especially glaring are the assertions of self-styled “conservative” media personalities that nothing is amiss, because:
(i) the President is “Commander in Chief;”
(ii) in that capacity he supposedly enjoys “inherent” power to take whatever actions he may deem necessary to protect this country from “terrorism;”
(iii) assertion of this Presidential power is especially vital now, with this country engaged in a “war on terror”; and
None of these contentions can withstand even cursory scrutiny.
1. The Constitution does designate the President as “Commander in Chief.” Article II, Section 2, Clause 1. Not, however, as “Commander in Chief” of the country as a whole, with the plenary powers of some Fuhrer or Duce, but only as “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.” As will be explained below, in this capacity the President exercises, not some limitless “inherent” power, but largely a circumscribed and contingent authority dependent upon mandates from Congress.
2. Merely labeling some situation a “war” cannot call the President’s rightful powers as “Commander in Chief” into operation, let alone boundlessly expand those powers. The so-called “war on terror” is not the unique example of such martial political hyperbole bombarding this country today. Simultaneously, Americans are exhorted to acquiesce in enlarged governmental powers to fight “the war on crime,” “the war on drugs,” “the war on poverty,” and even “the war on obesity.” Does anyone believe, though, that under color of (say) waging a “war on obesity” the President could declare McDonald’s employees “enemy combatants” and its fatty foods “weapons of mass destruction,” could deploy the Armed Forces to occupy its restaurants, or could even tap its phones without submitting to judicial review?
Constitutionally speaking, “war” is a very specific set of legal relations between two or more independent nations. For the most obvious example, in an actual “war” soldiers of one nation may, within certain limits, intentionally kill soldiers of another nation without thereby being guilty of murder. Thus, according to strict constitutional logic, a “war on terror” is an existential impossibility–if only because “terror” is a tactic, not a country; and “terrorists” do not constitute one or more independent nations, but at most are mere bands of private criminals. True, a clandestine or irregular armed force of some nation could employ the tactics of “terrorists” on behalf of that nation. Then, however, any “war” would be waged against that nation as a whole, not against just the “terrorists” as individuals. Thus, not surprisingly, Congress has never exercised its constitutional power “[t]o declare War” to declare a “war on terror.” See Article I, Section 8, Clause 11.
Perhaps even more importantly, Congress has not declared “war” on Iraq, either, even though such a declaration would be formally possible, and notwithstanding that the President has launched an invasion of that independent nation, overthrown its once-legitimate (if obnoxious) government, occupied its territory, and imposed a new regime on its people. This absence of Congressional action is consequential, because only Congress has the power “[t]o declare War.” And the Constitution plainly understands that, absent such a declaration from the only source authorized to pronounce it, a “War” cannot be conducted legally by the United States.
That the Constitution entrusts the power “[t]o declare War” to Congress alone is no historical accident, but rather is of profound legal significance. Under pre-constitutional English law, the King (the English Executive) had essentially unilateral, personal power to thrust a war upon his countrymen. If the Constitution had said nothing explicit about the power “[t]o declare War,” that power would have passed by implication to the President under “the executive Power.” Article II, Section 1, Clause 2. By placing the power “[t]o declare War” among “[a]ll legislative Powers herein granted” (Article I, Section 1), the Constitution transformed that power from an Executive to a Legislative power. Nothing could more clearly indicate that the Constitution denies the President any pretense of power himself either “[t]o declare War” or to involve this country in actions usually appropriate only after such a declaration has been made. (For example, ordering American soldiers intentionally to kill the soldiers of some other nation, under color of the claim that such killings are not simply criminal homicides but are justified by the laws of war.)
Revealingly, the absence of a declaration of “War” by Congress against any nation allegedly deploying “terrorists” evidences the disbelief of Congressmen that a case can be made that any nation has actually (if perhaps surreptitiously) attacked the United States in that manner. And that some sort of aggressive attack is necessary for “War” the Constitution makes plain. For instance, the Preamble states that “We the People * * * do ordain and establish this Constitution,” among other purposes, “to * * * provide for the common defence.” And the Constitution empowers Congress “[t]o lay and collect Taxes * * * to * * * provide for the common Defence.” For “Defence” only, not for aggression.
Moreover, if the plain language of “the supreme Law of the Land” (Article VI, Clause 2) is not enough to give pause to individuals who “shall be bound by Oath or Affirmation, to support th[e] Constitution” (Article VI, Clause 3), they should recall that an attack by one nation upon another independent nation not justified by “the common defence” of the former constitutes a crime under international law, as settled at the Nuremberg and Tokyo War Crimes Trials. The Constitution empowers Congress “[t]o define and punish * * * Offences against the Law of Nations.” Article I, Section 8, Clause 10. It extends to Congress no power to commit “Offences against the Law of Nations.”
If a declaration of “War” by the United States against some other nation in the course of “the war on terror” is not justified by “the common Defence * * * of the United States,” it certainly cannot be rationalized by an airy appeal to “spreading democracy” in foreign lands. The sole vaguely relevant authority of the United States is to “guarantee to every State in this Union a Republican Form of Government.” Article IV, Section 4. Nowhere does the Constitution empower the United States to further naked “democracy,” either at home or abroad, by any means, let alone “War.”
Neither could a declaration of “War” be justified simply on the grounds of defending some other country. The Constitution empowers Congress “[t]o lay and collect Taxes * * * to * * * provide for the common Defence * * * of the United States.” If a “War” is being fought, not “for the common Defence * * * of the United States,” but only for the defense of some other country, Congress cannot lawfully “lay and collect Taxes” to finance it. Inasmuch as the inability to fund such a “War” must render the declaration operationally nugatory if not ridiculous, the declaration itself must be beyond Congress’s authority. Furthermore, because no treaty can override the Constitution, even a treaty to defend some other country cannot bind the United States, unless, when the time for that defense comes, “the common Defence * * * of the United States” themselves is truly at stake.
Finally, even if the leaders of some other nation were planning to attack the United States in the indefinite future, a declaration of “War” now would be beyond Congress’s power. For preemptive war has been considered illegal for several hundred years (at least since Hugo Grotius, whom many consider the father of modern international law, wrote De Jure Belli ac Pacis)–a principle most recently applied in the judgments at Nuremberg.
3. Some “conservative” pundits argue that, even though Congress has not “declare[d] War,” it has authorized the President to employ “force” in “the war on terror.” This merely confounds the issue.
“Force” is not a constitutional term. Nowhere does the Constitution empower Congress to exercise “force” itself, or to license the President to do so. Even what the word “force” might mean, in some constitutionally acceptable context, is highly debatable.
If “force” is simply an euphemism for “War,” then a statute delegating to the President the power himself to decide when to employ “force”—that is, to launch a “War” on his own personal recognizance—must be unconstitutional. As explained above, the Constitution explicitly empowers Congress with respect to the initiation of “War” precisely in order to withhold that authority from the President. For Congress to purport to delegate that very power to the President under any terminology would reverse the Constitution’s studied separation of powers—about as violent and unjustifiable a flouting of the Constitution as one could imagine.
If “force” is not simply an euphemism for “War,” then what does it mean? Any type and level of violence? Directed against anyone? For any reason? Notwithstanding the laws of war, the laws of nations, and other laws of the United States? Violence not related to “the common defence”? Violence that is destructive of “Justice,” “domestic Tranquility,” and “the Blessings of Liberty” within the United States? Obviously, to make sense of the term, Congress would have to define “force” very distinctly, by setting the specific parameters within which it could be used–for example, when, how, by whom, for what purposes, with what limitations, and so on. And if Congress did not establish those parameters with sufficient clarity, it would unconstitutionally delegate Legislative power to the Executive. But if Congress did properly chart those parameters, the President would be bound by them. Should the President exceed the Congressional mandate, he would violate the law.