In the beginning of a change, the patriot is a brave and scarce man, hated and scorned. When the cause succeeds, however, the timid join him for then it costs nothing to be a patriot." — Mark Twain
Last night I was watching the Sean Hannity show on the Fox News Channel. As always he had a closing segment called “The Great American Panel”, a portion of the show in which I find little value. It usually turns out to be a shouting match between the liberal and conservative guests with very little truth and statements be tossed around with little or no basis in fact. Also the guests are mainly celebrities or political party spokespersons whose main job is to adhere religiously to their party’s ideological talking points. Occasionally there will be a panel member with some credentials and enough integrity to acknowledge the comments and thoughts of others.
Last night’s show was more egregious than the norm. One of the guests was Caroline Heldman, an Associate Professor at Occidental College. Her web site states: “Heldman specializes in the presidency, media, gender, and race in the American context. She has published in the top journals in her field and co-authored Rethinking Madame President: Are We Ready for a Woman in the White House? Prior to teaching at Occidental College, Heldman taught at Whittier College, Fairfield University, and Rutgers University.”
I write about this topic because I am tired of the ignorance or outright lying of these talking head experts on TV. During the “debate” about the constitutionality of Obama’s using military force against none of the panel members seemed to know what they were talking about, especially Ms. Heldman. She blatantly stated that George W. Bush did not have Constitutional or Congressional approval to attach Afghanistan or Iraq. When I hear this my first instinct was to throw something at my TV, but I thought better of that as the TV was too expensive. My next instinct was to scream at the top of my lungs “why in the devil are you holding down a job as an associate professor at a well-known college? How can you honestly accept you pay check when you are so ignorant or are you just prone to fabricating facts to support your ideology?
The fact of the matter is that in the case of Afghanistan George W. Bush did not need Congressional approval for responding to an attack on the United States and he did get a Congressional authorization to launch an attack on Iraq. On September 18, 2001 The President received formal authorization from the 107th Congress for use of military force to respond to acts of terrorism (Joint Resolution 63). On October 11, 2002 the Senate approved the Iraq War Resolution by a vote of 77-23 after the House had passed the resolution by a vote of 296-133. The Iraq resolution required Bush to declare to Congress either before or within 48 hours after beginning military action that diplomatic efforts to enforce the U.N. resolutions have failed.
Bush also needed certify that action against Iraq would not hinder efforts to pursue the al-Qaeda terrorist network that attacked New York and Washington last year. And it requires the administration to report to Congress on the progress of any war with Iraq every 60 days.
The measure passed the Senate and House by wider margins than the 1991 resolution that empowered the current president's father to go to war to expel Iraq from Kuwait. That measure passed 250-183 in the House and 52-47 in the Senate.
Ms. Heldman either has a very short memory or just flat out wanted to lie into the TV cameras. I was also disappointed in the other panel members for not having the knowledge to confront her with the facts.
I am getting sick and tired of liberals, libertarians and conservatives talking about the ability of the President to wage war and the War Powers Act, which has never been tested nor enforced.
Article I, Section 8, Clause 11 of the Constitution empowers Congress to “declare” war, not to “wage” war. That power is given the Commander-in Chief, The president of the United States under Article II, Section 2.
Professor Robert F. Turner, professor of law and the University of Virginia School of Law states: Article I, section 8, clause 11, of the Constitution grants to Congress the power "to declare War." As Hamilton noted in 1793, this was an "exception" to the general grant of "executive power" to the President, and thus was intended to be narrowly construed.
One of the common errors in discussing the scope of this exception to the President's general "executive Power"-a power reinforced by the specific recognition in article II, section 2, that "[t]he President shall be Commander in Chief of the Army and Navy of the United States" - has been to focus on the meaning of the term "War" under the Constitution. Congress is not granted the power of "War," but rather the more limited power "to declare War," which was a term of art from the Law of Nations with a clearly understood meaning in 1787.
The Framers were remarkably well-read men. The publicists with whom they were familiar in this area — writers like Grotius, Vattel, and Burlamaqui — all argued that a formal declaration of war was unnecessary for defensive hostilities. It was only when nations were at peace and one wished to initiate an offensive (or what we would today call an aggressive) war that it was necessary to declare war. And this distinction between the President's right to use force defensively, but requiring legislative sanction to initiate an offensive war, was evident in the debate at the Philadelphia Convention over Madison's motion to give Congress not the power "to make War," but the more narrow power "to declare War." In 1928 and again in 1945, the world community by treaty outlawed the aggressive use of force among nations, and in the process made the declaration of war clause a constitutional anachronism. It is no coincidence that no sovereign state has clearly issued a declaration of war in more than half a century. You can read Professor Turner’s complete paper on this subject by clicking here.
Professor Turner continues: “When the Senate consented to the ratification of the UN Charter in 1945, and Congress approved the UN Participation Act (UNPA) later that year, it is absolutely clear that they believed that international peacekeeping operations did not infringe upon their power "to declare War" and recognized instead that this was the business of the President. The unanimous report of the Senate Foreign Relations Committee urging ratification of the Charter, quoted by the unanimous report of the House Foreign Affairs Committee on the UNPA, argued that "enforcement action" pursuant to an order of the Security Council "would not be an act of war, but would be international action for the preservation of the peace," and reasoned: "Consequently, the provisions of the Charter do not affect the exclusive power of the Congress to declare war." During the final day of Senate consideration of the UNPA, an amendment offered by Senator Burton Wheeler (D-Montana) requiring prior congressional approval before the President could send U.S. armed forces into harm's way, pursuant to a Security Council decision to use force to keep the peace, was denounced by the bipartisanship leadership as contrary to our Charter obligations and the President's well-established independent constitutional powers to use armed forces short of war for various reasons. In the end, the amendment received fewer than ten votes.”
It seems as though there is a great deal of ignorance and misinformation polluting out media when it comes the authority of the President of the United States to take military action against a threat to our national security or national interest. Many people read Article I, Section 8, Clause 11 without any contextual reference to what our Founders envisioned or acts of previous Congresses
That’s why I argue that, although President Obama’s unilateral commencement of a war against Libya is constitutionally questionable, he clearly has the power to do what he has done, for there are no legal remedies. This is a political dispute, not a legal one. Congress, if it is so disposed, will have to flex its competing constitutional muscles to rein the executive branch in. The courts should not, and almost certainly will not, intervene.
I don’t believe the Framers ever arrived at a consensus when it came to the war powers. The statements in the debates over the Constitution are all over the map. Some wanted congressional approval to be the necessary trigger for taking the nation to war. That’s why early drafts of the Constitution called for vesting Congress with the power to make war. Others realized this would be suicidal, leaving the country vulnerable to an annihilating attack while the president waited for Congress to act. That’s why the power to make war was ultimately watered down to the power to declare war.
In his book The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11, University of California law professor John Yoo, an alumnus of the Bush Office of Legal Counsel, argues that the power to declare war is basically just the authority to fix the rights and privileges of belligerents and combatants under the laws of war (e.g., legitimating attacks on persons and property, permitting seizures of contraband supplied by neutrals, etc.). This enumerated congressional power would not, on this interpretation, be much of a limitation on presidential war-making — especially when the goals of a military operation are limited and fall short of “total war.”
The Framers wanted both Congress and the president in the mix when it came to involving the country in armed hostilities. Settling on a congressional power to declare war was a compromise between those who wanted legislative dominance and those who wanted a freer presidential hand. The compromise did not resolve the tension, but it is indicative of an intention to give the people’s representatives a substantial role, a role they have rarely taken on.
We have not had a formal “declaration of war” from our Congress since 1941 and we have had numerous military actions around the globe including Korea, the Dominican Republic, Vietnam, Panama, Lebanon, Grenada, Bosnia, Kosovo, Kuwait, Afghanistan, Iraq and now Libya. While I am not in favor of our intervention in Libya I do, however, believe the President of the United States has the authority to engage the United States military into the UN sanctioned action.
Presidents can use Congress as political cover, and many do, for any military intervention, but he does not have to get their permission. On the other hand Congress has the power of the purse and can defund a military action any time they so desire. This is how or involvement in Vietnam ended. It was not the War Powers Act that got us out of Vietnam — it was Congress closing the purse strings on the war.
Isn’t it about time for the media and so called professors like Ms. Heldman to act responsibly and report facts, not their ideological biases?