Friday, June 24, 2011

Krauthammer’s Mistake

     It is with some relief that your author has finally found a point of disagreement with the esteemed Charles Krauthammer. The danger in reading such a brilliant commentator is that one begins to doubt the independence of one’s own opinions. Hence, the discovery of a point of disagreement is cause for a minor bit of relief.

     The point in question has to do with the War Powers Act, which Krauthammer correctly reads, in a piece with today’s date, as requiring the president to obtain congressional consent to military action in Libya. The engagement—or whatever we are to call it—has now gone on well past the 90 days allotted by the War Powers Act, and the required consultation with Congress has yet to materialize. Where Krauthammer goes wrong is at this point: “The power to declare war has become, through no fault of anyone, archaic and obsolete. Taken literally, it is as useless as granting Congress the right to regulate horse-and-buggies.”

     One problem with this excuse for ignoring the explicit constitutional division of authority is that it ignores the explicit constitutional division of authority. Generally opposed to departures from the text of the Constitution, Krauthammer seems here to forget the strict constructionist’s rule. If the Constitution is “archaic and obsolete,” then it must be amended by the process prescribed in the document itself. But in this case, doing so is not required—despite Krauthammer’s urging.

     It has been an article of faith for some on the Right that the president’s constitutional power to wage war, as commander-in-chief, also gives him the power to declare war. This view is mistaken. The division of authority on this point is clear: Congress picks the enemy, whereupon the president conducts the military operation. In our time, he does so through subordinate military officers, but they act on his orders. As noted here before, this division was the clear intent of the people who wrote the Constitution. Their model was the Roman Republic, in which such a division of authority had a long history, and it was a good model.

     Power naturally tends to accrete to the presidency. Limiting that power by constitutional provisions, such as the “archaic” insistence on a declaration of war by Congress, is essential to slowing that process of accretion. It is therefore, ultimately, also essential to liberty.

     In the end, it is circular reasoning to argue that we may ignore the requirement for a declaration of war because recent presidents have neglected the requirement. At least President Bush’s consultations with Congress before launching invasions of Iraq and Afghanistan were the functional equivalent of seeking declarations of war. Presumably, the motive was more about political cover than adherence to constitutional form. Still, it was far better than the current example—and on that point, Krauthammer is right again.


  1. This comment has been removed by a blog administrator.

  2. I agree with our esteemed host (who may be a funny dude, too, but having a government which owes whatever respect it deserves for the principles and policies embedded in its binding Constitution and then proceeds ignores its own Constitution is more sad than funny).

    However, there are some practical problems with strictly enforcing the War Powers Act or the Declaration of War authority of Congress.

    First of all, the incidents of what may broadly be described as hostilities have historically vastly outnumbered the number of declared wars, do so presently, and are likely to continue to do so. Asking one of a thousand federal judge (almost all of whom are smart and most of which respect the law, admittedly), armed with nothing more than the text of the Constitution and a dictionary to define exactly where the boundary line between a mere hostile action and an outright war lies is no way to run a country.

    Second, the War Powers Act as passed, may very well be unconstitutional in restricting the genuine Constitutional commander-in-chief role. It certainly is insufficiently clear--allowing the unscrupulous (like the current President) to make straight-face claims that the current actions against Libya are not "hostilities." (Which brings up the question, what is it we are dropping on the Libyan army and government? "Friendly" bombs?)

    Personally, I think that the best solution would be to attach a rider to annual Defense appropriations bill (and its equivalents) stating that "no funds appropriated herein may be expended towards [an exhaustive definition of hostilities, including dropping bombs on a country] for more than thirty days."

    Riders of this type are ubiquitous in appropriations bills and are pretty clearly constitutional.

    Moreover, thirty days are plenty for Congress to pass a law overriding the rider for a specific action. Even in 1941, before ubiquitous air travel and electronic communications, it took Congress mere days from the bombing of Pearl Harbor to declare war. If there is a genuine need for something as serious as starting to kill large numbers of people somewhere in the world, today's Congress will be able to act within thirty days--in fact, probably a week.

  3. "Anonymous said...
    Wait, you really thought CK gave a **** about the Constitution? Seriously?

    You're a funny dude!"

    [comment re-posted]

  4. Aeternitatis, my position is that any uncertainty derives from an abuse of the term "war" rather than anything unclear in the constitutional division of authority. Once we are sure we are talking about war, then there is no doubt Congress has sole authority to launch it. Commanders conduct wars; they do not choose them.

    I like your point about riders. Typical pragmatic resolution characteristic of a healthy government.

  5. Unfortunately, sometimes it is not clear what is a war and what is not with a fuzzy boundary line. Clearly, the invasions of Afghanistan and Iraq or the U.S. conduct against Germany starting in '41 were wars. But is our current occupation of Iraq and Afghanistan (at the invitation of their respective governments) a war?

    What about the ongoing presence of U.S. troops on German soil? They still sometimes come under fire and will return it if possible. Does that mean we are still at war with (or in) Germany? Clearly operations in Iraq and Afghanistan and Germany today are on a different scale, but the entire spectrum in between has happened and will continue to happen.

    Federal judges, equipped with only the text of the Constitution and a dictionary, are generalist lawyers and probably not the best people to decide where that boundary line lies. That is my problem with actually (i.e., judicially) enforcing the Declaration of War authority.

  6. Aeternitatis, we agree that the definition of war is where the real ambiguity lies. I also agree that the courts have been wise, so far, in refusing to decide this issue. How nice it would be if they would refuse to hear a great many more issues!