How The Imperial Presidency Hijacked the Constitution
Metropolitan Books, $25, 304 pp.
The United States Constitution can be vexingly vague—the placement of a comma separates those who believe that the Second Amendment permits private citizens to own firearms from those who say it limits gun ownership to the military—but it is crystal clear on the matter of war. As every schoolchild learns, only Congress may send troops into battle.
The last time this happened was some 63 years ago, the day after the Pearl Harbor bombing. President Franklin D. Roosevelt asked “Congress [to] declare that since the unprovoked and dastardly attack by Japan on Sunday, December seventh, a state of war has existed between the United States and the Japanese Empire.” Congress, minus one dissident, voted yes.
We haven’t seen a declared war since FDR delivered his famous speech, yet the United States spent nearly every day of the last half of the 20th century fighting someone somewhere. Three major conflicts—Korea, Vietnam and the Gulf War—deployed more than 17 million soldiers of whom 92,122 were killed. In addition, American troops killed and died in countless, mostly forgotten, so-called “low intensity conflicts.” During the late spring of 1962, for example, President Kennedy ordered 5,000 Marines to invade Thailand. U.S. forces secretly fought in at least four Congolese civil conflicts, in 1964, 1967, 1978 and 1991. Ronald Reagan invaded Grenada in 1983. The first President Bush invaded Panama in 1989; President Clinton intervened in Somalia and Kosovo in 1993. And that’s not even counting the CIA’s black-op shenanigans.
Our brand-new century hasn’t given pacifists cause for optimism. Since 2001 hundreds of thousands of U.S. troops have fought against increasingly powerful enemies in Afghanistan and Iraq. Officially 214 Americans have been killed so far in Afghanistan and about 1,900 in Iraq. (Soldiers who die on planes leaving Kabul or Baghdad, or at military hospitals in Germany and elsewhere, are not counted. Because of this policy, Pentagon sources say the real death toll is over 9,000 for Iraq alone.) George W. Bush also armed and trained the perpetrators of coups against the governments of Haiti, Kyrgyzstan and Venezuela, of which the first two succeeded.
How can presidents fight so many wars without obtaining authorization from Congress? Since the administration of Theodore Roosevelt, explains UC San Diego law professor Peter Irons, “Congress has been a willing, often eager accomplice in handing its constitutional war powers to presidents.” His new “War Powers” lucidly and terrifyingly tracks this “increasing subversion of the U.S. Constitution” to demonstrate what anyone who’s ever driven over the speed limit already knows: it’s easy to break the law when everyone else doe it. Even more damning, according to Irons, is that few seem to mind: “Successive generations of Americans, unwilling to force their elected representatives to reclaim their powers from presidents who have ordered troops into dozens of undeclared wars, have abetted the undermining of the fundamental structure of the government.”
This isn’t a debate between liberals who see the Constitution as a living document and conservatives who search for the Founders’ “original intent.” The Philadelphia delegates, notes Irons, were determined to not to replicate the “evils of…monarchies.” A king didn’t need permission to declare war. That broad power, believed the Founders, made it too easy to wage them.
Only a single delegate favored “vesting the power [to declare war] in the President” and the current wording, vesting war powers with Congress, passed overwhelmingly.
The president is also the commander-in-chief of the armed forces, but as such he may only deploy troops in a defensive posture, to repel invaders—by far the most likely scenario in 1793, when the U.S. was economically and militarily powerless. “The Framers,” argues Irons, “agreed that the president could act without a congressional declaration of war to repel an invasion but that only Congress could authorize the deployment of forces outside the nation’s territory in combat against foreign troops.” When the British invaded the U.S. during the War of 1812, the president was clearly authorized to act without awaiting word from Congress. Similarly, FDR could order troops into combat to repel the Japanese from Hawaii. But legally invading Japanese territory, even as part of a punitive or preemptive strike, still required him to get the OK from Capitol Hill.
In Federalist Paper No. 69, a newspaper article arguing for ratification of the new Constitution, Alexander Hamilton explained to the American public that the president’s title as commander-in-chief was chiefly ceremonial: “While [the powers] of the British kings extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the Legislature.”
Early presidents, perhaps because they had been present for the deliberations that led to the formation of the new republic, respected the constitutional separation of war powers. Secretary of State Thomas Jefferson, writing to Congress in 1790 on behalf of President Washington about America’s first foreign policy crisis—the Regent of Algiers, a vassal state of the Ottoman Empire, was holding 21 American sailors hostage—stated that “it rests with Congress to decide between war, tribute, and ransom.” Washington awaited Congress’ choice.
“War Powers” relates the background and disposition of two centuries of the curious intersection between war as foreign policy and civil litigation, particularly as seen through Supreme Court precedents. To read Irons telling it, increasingly militarily aggressive presidents stole Congress’ power to make war by repeatedly twisting the definitions of their powers as defined in the Constitution and by relying on some of the most flawed and cowardly decisions to have ever been generated by the courts, all while ordinary citizens cheered approvingly.
There were exceptions. In 1858 President Buchanan told Congress that his authority in foreign affairs “is limited to the employment of diplomacy alone. When this fails, it can proceed no further.” But exceptions are few by definition.
Theodore Roosevelt’s Spanish-American War marked the beginning of America’s rise as a colonial empire to rival the Europeans and the end of the republican idea that war should never be waged without the overwhelming support of the citizenry as expressed through their elected representatives. Presidents enjoyed an “inherent” right to deploy troops without consulting Congress, TR and his successors argued, and too few have raised their voices against this new paradigm to make a difference.
In 1903 he launched our first small war of choice, a gambit that has since become the United States’ preferred means of exerting military power. When Colombia, which then included modern-day Panama, refused to allow the U.S. to build a canal across the isthmus under the terms it sought, Roosevelt “encouraged a revolt by Panamanians and sent warships to prevent Colombia from sending troops to Panama.” The new Republic of Panama, a puppet state, yielded sovereignty over the new Canal Zone to the U.S. Congress approved the military intervention retroactively. “I took the Canal Zone and let Congress debate, and while the debate goes on the canal does also,” Roosevelt bragged later.
Since then neither Congress nor the courts have been inclined to call presidents to account when they overstep their constitutional powers. The Supreme Court, in Korematsu v. United States (1943) and related cases, went so far as to rule that Franklin Roosevelt was authorized to round up and imprison thousands of innocent Japanese-Americans in concentration camps because, as Chief Justice Charles Evans Hughes wrote, “The war power of the national government is ‘the power to wage war successfully.'” Few Americans should require formal training to recognize the faulty legal l’état, c’est moi reasoning at work, yet this decision has never been reversed. After 9/11, White House lawyers relied on Korematsu as a precedent justifying the internment of thousands of Muslims in Guantánamo Bay and Homeland Security concentration camps.
As a reviewer I’m obliged to point out the pitfalls of Irons’ work, but given the elegantly presented arguments presented in a delightfully conversational style about a monumentally important, yet woefully underdiscussed issue it would be churlish—and virtually impossible—to do so. My only beef with “War Powers” is its innate pessimism: he doesn’t expect Congress to take back its war powers, or for we the people to wake the hell up. But then, let’s be honest. Neither do I.
Two hundred years of constitutional devolution is difficult to correct, but the big question is: should we care? After all, if everyone drives 70 in a 55 mph zone, maybe it’s the speed limit that’s wrong. If the American people are satisfied with an imperial president who single-handedly decides when to go to war, why worry about some crumbling piece of paper at the National Archives says?
Slippery slopes offer one reason. Powerful men strive to accrue more control. Unchecked, they become dictators. No one should rest easily now that, for example, George W. Bush has signed a secret presidential directive authorizing him to order anyone, anywhere—including Americans—assassinated as an “enemy combatant” in the “war on terror,” no evidence of wrongdoing necessary.
A nation that ignores its fundamental legal underpinnings, moreover, is by definition lawless. Once one basic stricture has broken down, what’s to prevent the rest from following suit? The old Soviet Union, after all, also had a wonderful constitution.
© 2005 Ted Rall, All Rights Reserved.