The wheels on the bus go round and round…
Blowhard so-called “constitutionalists” are bellowing in their bullhorns again. “Illegal!” they cry. “Only Congress!” they shriek. One should think, for all the purported “credentials” of so-called astute scholars, they would at least have a clue on the “intent” of the Founders based on, oh…evidence or something.
Not for nothing, both James Madison (Virginia) and Elbridge Gerry (Massachusetts) sought to amend Congress’ enumerated war power clause as it was being written…substituting “to declare” versus “to make” war. [See Farrand’s Records.] Oliver Ellsworth (Connecticut) voted against the amended language, until Rufus King (Massachusetts) observed that “to make” war might be understood “to conduct” war, which is the Executive’s function as Commander in Chief. The amended clause subsequently passed.
It is clear that the Framers, having prosecuted the War for Independence under the Articles of Confederation, sought the advantages of executive efficiency. By vesting the President, they ensured the President was empowered to make military decisions without awaiting congressional deliberative action. Declarations of war are separate matters.
Indeed, the first “acts of war” perpetrated upon our new nation (October 1784), were the attacks and seizures of our merchant vessels by the Islamic Barbary pirate regimes. Being weak without a navy, these United States paid crippling tributes to the Muslim dictatorships for 15 years…until we finally fought back.
Even then, Congress did not formally declare war. Congress did not think one was necessary to carry out the military operations. By today’s revisionist standards therefore, Thomas Jefferson carried out “illegal” military actions. Never was such an imposed impotence ever the Framers’ intent. This is perhaps made most clear by James Iredell in the North Carolina Ratifying Convention, 28 July 1788.
Iredell was in the camp of a strong Executive; he argued, “From the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, dispatch and decisions, which are necessary in military operations, can only be expected from one person.”
Iredell acknowledged that “It is, however, much to be desired, that a man who has such extensive and important business to perform should have the means of some assistance to enable him to discharge his arduous employment.” But Iredell drew sharp distinctions between the new American government being proposed under the Constitution and what they had been accustomed to under Britain. The principal difference is that the President is accountable under the law, whereas the King is not.
“If the President does a single act by which the people are prejudiced, he is punishable himself, and no other man merely to screen him,” Iredell said. “If he commits any misdemeanor in office, he is impeachable… If he commits any crime, he is punishable by the laws of his country, and in capital cases may be deprived of his life.”
Because of that, to demand that the President submit all military actions to Congress is byzantine, at best. The President, “had he a council by whose advice he was bound to act,” said Iredell, “his responsibility, in all such cases, must be destroyed. You surely would not oblige him to follow their advice, and punish him for obeying it.”
Iredell then made an observation that very easily could have described the entire Obama Presidency…of shifting blame and never taking responsibility. “If called upon on any occasion of dislike, it would be natural for him to say, “You know my council are men of integrity and ability: I could not act against their opinions, though I confess my own was contrary to theirs.””
Iredell pointed out over 225 years ago that, in cases involving collusion, “it might be impossible to fix a fact upon him. It would be difficult often to know whether the President or counselors were most to blame. A thousand plausible excuses might be made, which would escape detection.” That—a thousand excuses—precisely defines the Obama debacle as he “led from behind” favoring “the institution of council”…which Iredell condemned as corrupted.
In any case, the courts have long held the Executive has enumerated war powers. Since 1871 the courts [Stewart v. Kahn, 11 Wall. (78 US) 493, 507] have held that the President’s war powers are “not limited to victories in the field…It carries with it inherently the power to guard against the immediate renewal of the conflict, and [the power] to remedy the evils which have arisen from its rise and progress.”
Arguing along prudent man lines, James Madison [19 January 1788, Federalist Papers, No. 41, 269-76] observed that “Security against foreign danger is one of the primitive objects of civil society.” A key to Madison’s arguments is this: “With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offence?”
“If a Federal Constitution could chain the ambition, or set bounds to the exertions of all other nations,” Madison argued, “then indeed might it prudently chain the discretion of its own Government.” But that is not the case.
“How could a readiness for war in time of peace be safely prohibited, unless we could prohibit in like manner the preparations and establishments of every hostile nation?” Madison asked. “The means of security can only be regulated by the means and the danger of attack. They will in fact be ever determined by these rules, and by no others.”
Writing for the Court in 1850 [Fleming v. Page, 9 How. (50 U.S.) 603, 615, 618], Chief Justice Taney said of the President: “His duty and his power are purely military. As commander-in-chief, his is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual.”
Again, treaty is law under the Constitution. And being bound under treaty, specifically the United Nations Charter at Article 51, despite the caterwauling of the so-called “constitutionalists”:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against any Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” Nothing.
We have little doubt that those who today argue that these United States must somehow submit to UN council before acting in what are the interests of all mankind—to prevent another chemical attack in Syria—would have Mr. Iredell and Mr. Madison at least rolling in their graves. Those conditions that the revisionists seek to impose do not exist in the Constitution, and never did. And they do not exist in the UN Charter, which does not and cannot impair inherent rights of collective defense.
Madison challenged Patrick Henry in the Virginia Ratification Convention on this very power. “Would the honorable member say that the sword ought to be placed in the hands of the representatives of the people, or in hands independent of the government altogether?”