The Clinton Wars: The Constitution, Congress, and War Powers

1. War Powers in American History

1 1 War Powers in American History Since the republic’s founding, American presidents have engaged in over three hundred different uses of force abroad. During the same time, Congress passed only five declarations of war. To the casual observer, it may seem that as commander in chief, the president is entitled to unilateral military powers and acts in a perfectly constitutional manner when deploying troops without congressional approval. From this logic, it follows that Congress is supposed to be a secondary player in American foreign policy and should remain at a distance when it comes to the decision to use of force abroad. Some politicians and scholars alike contend that the president should be the empowered branch of government when it comes to using the military abroad. Based on political practice, especially since World War II, it is understandable how one could come to this conclusion, although such a view neglects the founding fathers’ views on checks and balances, as well as key treaties negotiated by the United States Congress that protected and reaffirmed Congress’s constitutional war powers. Advocates of Presidential War Powers One of the strongest proponents of presidential war powers was Senator Barry Goldwater (R-Ariz.). Goldwater argued that when the founding fathers discussed war powers at the Constitutional Convention and decided to assign Congress the power to “declare” rather than “make” war, they intended that the president should be in charge of military decisions. Congress should only speak to support the president. In his view, Congress may decide to declare war or not, but the president has an independent leadership role in his constitutional war powers .1 Former senator and secretary of defense nominee John Tower (R-Tex.) likewise argued that the president should not be encumbered 2 The Clinton Wars by Congress in foreign policy making. While Tower’s critique of Congress was broader in scope than Goldwater’s, Tower still maintained that the president should be allowed to respond quickly in the nation’s interest if a military need exists. Tower believed that more often than not Congress gets in the president’s way, to the detriment of U.S. foreign policy.2 Advocates of a strong commander in chief might also point to Federalist Paper No. 74 to support this position, in which Alexander Hamilton wrote: “Of all the concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of a common strength; and the power of directing and employing the common strength forms a usual and essential part of the definition of the executive authority.” Hamilton’s vision of the presidency clearly emphasized an empowered commander in chief. Other students of war powers argue similarly that Congress should not be involved in use-of-force decisions. Robert Bork maintains that it is mistake to place “law” over national interests in American foreign policy. Rather, he argues that morality should be the president’s guide and Congress should stay out of use-of-force decisions and use only public opinion as its guide to either critique or applaud the president.3 Others maintain that because Congress consists of so many different members, lacks expertise in foreign policy, and often thinks in parochial terms, any military decision “short of war” should be left with the president alone.4 Given the heightened perception that Congress has become increasingly partisan over the last decade and spends much of its time running for reelection rather than immersing itself in the study of public policy, this argument at first glance may seem very attractive to students of American foreign policy, as well as the wider public. Perhaps the strongest piece of evidence cited by those who advocate a strong, empowered president is Supreme Court Justice George Sutherland’s written opinion in U.S. v. Curtiss-Wright Export Corporation et al. (1936). In this decision, which involved the export of military arms to Bolivia and Paraguay, Sutherland argued that the president is not limited by the Constitution in foreign policy making and has sovereign powers in foreign affairs. Sutherland wrote that the president is the “sole organ of the federal government in the field of international War Powers in American History 3 relations,” and has “plenary and exclusive” power as president.5 Sutherland ’s position clearly implied that Congress was meant to play a secondary role in...