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Why didn't the Framers explicitly require the president to seek approval from Congress before engaging in all acts of war, and enumerate such power in Congress?


So Much Educating To Do, So Little Time To Do It

Why didn’t the Framers explicitly require the president to seek approval from Congress before engaging in all acts of war, and enumerate such power in Congress?

Why didn’t the Framers explicitly require the president to seek approval from Congress before engaging in all acts of war, and enumerate such power in Congress?  If they granted the president, as commander-in-chief, the power to only repel military acts against the nation without congressional authority, why did they not enumerate that?  What of offensive military actions taken to prevent imminent threats?  What of covert operations for that matter, or extended wars fought over decades but mostly through surrogates (such as the Cold War)?  What must be declared and when?     

— I repeat, the Congress — has funded every kind of military and covert operation — untold numbers of them — without issuing a formal declaration of war in the vast majority of cases.  What stops it?   It does not need permission or a request from a president to issue a formal proclamation.  It issues proclamations about meaningless things all the time without being asked.    The Constitution says Congress shall have the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water …” 

When members of Congress vote to fund these activities, they are giving their formal, official consent to the operations.  More than voting to declare war, they are actually voting to fund war — all kinds of war.  Interestingly, in most of the cases in which Congress has formally declared — which is World War II — there was never any doubt that the president would use all possible military force to protect the nation, and Congress would fund it, even without any declarations.  The declarations were not used as constitutional requisites for war, but to rally the nation and assert our resolve.  But once Congress has funded a military operation, and it funds virtually all of them, it is undoubtedly helping to make war for without the funds there can be no war.  Thus, in each instance, it is declaring war its support for the military actions            

What of military operations launched by a president where the president uses funds already appropriated by Congress before the operations began, but which were approved for general national security purposes — that is, where Congress has not actually voted on funding a particular operation?  Without question Congress has the power to withhold appropriations or defund operations, if it can muster enough votes to overcome a presidential veto.  Congress rarely does so, although most notably in ending the Vietnam War.  Congress has the power to enforce its decisions by impeaching a president and removing him from office should he continue to prosecute military operations after it has formally acted to end them. 

Hence, comparisons between the president and a monarch are ridiculous.  These are very powerful tools, should Congress decide to use them.  However, even now, when the president has directed military operations in Libya, is Congress even considering cutting off funding?  What about the Republican majority in the House?  No.  But there is no question that congressional authority respecting war powers is significant, which distinguishes our system from many, including a monarchy.  But make no mistake, it is not significant enough for the neo-anarchists, who cherry-pick their way through history to promote a dogma.

“But Mark,” asks the outlier professor, “here is my challenge to you. I want you to find me one Federalist, during the entire period in which the Constitution was pending, who argued that the president could launch non-defensive wars without consulting Congress. To make it easy on you, you may cite any Federalist speaking in any of the ratification conventions in any of the states, or in a public lecture, or in a newspaper article – whatever.”

Consulting Congress?  Now, notice how the outlier professor changes the subject.  I’ve been at this now for the better part of a week.  I’ve explained my position on radio, on Fox, and on this site.  I think it is extremely wise for a president to consult with Congress (well, not all 535 members but members in leadership positions) before launching non-defensive military actions for both policy and political reasons.  In fact, most presidents claim to have done so in one form or another respecting most military operations.  I cannot imagine any Federalist would have argued against a president consulting with Congress.  Why would they?  But that was not the issue.  Consulting Congress is a far cry from arguing that a president is required, as a constitutional requisite to military operations, to secure a declaration of war.  So, the outlier professor would be misstating what I said and dodging the issue, apparently something he has been accused of before by another professor, Ronald Radosh.  You don’t have to agree with Professor Radosh’s views, but he raises a serious concern.   

Anyway, there you have it folks.  Either you are convinced or you are not.  If not, then you have to conclude, as they do here, that Ronald Reagan was a neo-con, monarch, warmonger, or whatever.  I have to move on, but I am sure the Paulite dead-enders will carry on.   

(By the way, Russell Kirk despised libertarians.  I am not of the same mind in that regard.  Some of my best friends are libertarians – just not of the neo-anarchist kind.)   

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Mr. Levin is a syndicated radio show host and author of the New York Times bestseller Liberty & Tyranny: A Conservative Manifesto.

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