I respectfully dissent from the editors’ support for U.S. military intervention in Syria, which expands on the corporate position National Review staked out last week.
While the credibility of an American president is no small thing, it is simply wrong to equate Barack Obama’s credibility with that of the United States, as the editors do: “The other [option left to Congress besides green-lighting an attack on Syria] is to turn [Obama] down and destroy the president’s credibility, and hence the nation’s.” (Emphasis added.) Ironically, their editorial goes on to deride conservative opponents of military intervention as overly simplistic. But it is the editors who oversimplify matters. American credibility on the international stage is bound up in the recognition of, and willingness to act on, vital national interests. It is not embodied by any single political actor – indeed, when one branch of government acts against the national interest, our system is designed to enable the other branches to put a stop to it.
The editors miss this point because they have conflated two critically different constitutional concepts: the unitary executive and separation of powers. Thus does the editorial offer up Alexander Hamilton as an exemplar of the Founders’ allegedly harmonious desire for “a strong commander-in-chief” who could “act with ‘decision, activity, secrecy and dispatch.’” The implication is that for Congress – and “some on the right” – to oppose a president’s foreign-affairs decisions is to undermine our constitutional order and, thus, our government’s “credibility” (meaning, effectiveness) in foreign affairs.
In context, however, Hamilton was not arguing (in Federalist 70) for an executive unfettered by congressional checks and opposition. He was advocating that the executive branch not be divided – i.e., that all the powers granted to the president be reposed in a single official rather than in multiple consuls or a committee. Hamilton did not come close to suggesting that Congress should avoid impeding the president. To the contrary, he contended that his suggested unitary executive model would make it easier for Congress and the public to rein in executive power. As he put it in that same essay the editors cite, “the executive power is more easily confined when it is one.”
Indeed, as memorialized in the records of the Constitutional Convention, even Hamilton, though the most enthusiastic of the Framers for a powerful executive, acknowledged that the president’s commander-in-chief powers were limited to “the direction of war when authorized or begun” (emphasis added). “Begun” obviously refers to the situation when the nation has been attacked. Beyond that, presidential uses of force would be appropriate only “when authorized” – and the Constitution vests the power to authorize in Congress.
While I disagree with a number of his conclusions, a law review article by Valparaiso’s D. A. Jeremy Telman ably recounts the relevant Constitutional Convention debates. Pierce Butler, he notes, actually proposed that the power to initiate war be vested in the president. The notion was roundly rejected, with Butler upbraided by Elbridge Gerry, who exclaimed that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.”
Telman continues:
As James Madison put it in a letter to Thomas Jefferson: “The constitution supposes . . . that the Ex[ecutive] is the branch of power most interested in war, [and] most prone to it. It has accordingly with studied care, vested the question of war in the Legisl[ature].” Similarly, writing as Helvidius in his exchange with Alexander Hamilton, Madison asserted that “[i]n no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.” As Michael Ramsey put it, “Madison, Hamilton, Jefferson, Wilson, Washington, Jay, Marshall, and an array of lesser figures indicated that war power lay primarily with Congress, and no prominent figure took the other side.”
No sensible person contests the president’s power – in fact, his duty – to take unilateral action in the nation’s defense when we are under attack or the threat of imminent attack. But outside such exigencies, congressional authorization is a pre-condition to the president’s use of force. That necessarily implies that Congress may disagree with the president’s assessment. As today’s Obama partisans were fond of reminding us throughout the Bush years, the president does not get a blank check.
I have always been a proponent of strong executive power. I do not believe Congress may micromanage functions the Constitution actually assigns to the executive – including command over war fighting once war is authorized. I do not believe Congress may usurp or reassign to the judiciary powers that the Constitution vests in the president, such as the collection of intelligence against foreign powers. Nevertheless, again and again, the records of debates over the Constitution, and the Federalist papers on which the editors rely, demonstrate that the Framers were more worried about executive excess than executive credibility. The controversy was not between those who wanted a strong executive and those who did not; it was between those who believed the proposed constitution included enough checks against potential executive abuse and those who thought it needed more.
Consequently, the Framers armed Congress with the power to declare war. (As our prior discussions here have elucidated, while I am in broad agreement with many aspects of my friend John Yoo’s analysis of constitutional power – see e.g., here – I respectfully disagree with his minimization of Congress’s Article I power to declare war, an interpretation tough to square with the recorded sentiments of Madison, among other framers.) The Constitution further enables Congress to defund military operations. It expressly limits appropriations for a standing federal army to two-year periods – precisely because the Framers worried that control over a powerful, permanent army would lead to abuses of presidential power.
Read more at nationalreview.com
