The Power to Make War Part II

It seems simple.  The United States, its citizens or its vital interests are under direct attack or imminent threat.  Congress, through its various committees (Intelligence, Foreign Relations, Armed Forces, etc) has been provided information from the various organizations and arms of the United States government.  The President also has the same information. 

The President's cabinet and various organizations from intelligence to Joint Chiefs of Staff provide an assessment and plan to defend these important aspects of the United States.  The president then calls a session of congress, lays out the information and requests Congress to declare war.  Congress, after due consideration and debate, acting as representatives of the citizens, declares war or does not.  If yes, the president goes back to the various arms and organizations and prepares to act.  If no, the President continues to work towards resolving the problem peacefully until it is resolved or until the situation requires another response, such as finally a declaration of war.

If it were only that simple.  As the War Powers Commission observes, for over 200 years, since the first confrontation between the newly independent United States and the country of France, the tension between competing Constitutional powers of the President and the Congress of the United States as well as the competing political aspirations, ideas on foreign relations, the necessity to protect US interest while balancing competing Geo-political realities and, finally, the increasingly common use or acts of non-state actors (terrorists), increases the probability that a multitude of responses and level of force will be required to defend the US and its interests and will rarely be as simple as scenario laid out above.  

In fact, for most of the history of the United States, it has not.  More to the point, over the course of 232 years, the United States has actually formally declared a war only five times.  Congress has authorized the use of military force (AUMF) 12 times.  The President has acted without express authorization from congress to use military force 125 times. 

Most of those incidents occurred long before the War Powers Act of 1973 or this current proposed Consultation Act.   If, in fact, the use of military force by the President without express authorization of congress or a declaration of war from the same is unconstitutional, why haven't at least 30 presidents been impeached for breaking their oaths to support and defend the Constitution or otherwise acting contrary to its laws?

Many people can quote Article I, Section 8 of the Constitution that expressly gives congress the power to "declare war" among its various other duties to raise and fund armies and a naval force.  Or even note that Article II, Section 2 makes the President the Commander in Chief of the armed forces.  How many know that Article I, Section 10 forbids the states to have a naval force or an army or in any way engage in war unless they are in "imminent danger" or "invaded"?  (Yes, Virginia, that is why President Lincoln believed that the Confederate states had violated the Constitution and were, in fact, unlawful rebels, not Constitutional patriots). 

Beyond that, it could be asked, why did the framers set up this automatic tension between the Executive and the Legislative branches?  How did they see this working?  Particularly, in light of their previous experiences as English subjects.  Not speaking of the actual revolution, but the many "quasi-wars" that placed these citizens at risk such as the French and Indian Wars or the undeclared, but long standing, naval harassment of shipping between England and France or England and Spain.

History and the Declaration of Independence would seem to indicate that the citizens of the colonies were unhappy about continuing wars and military engagements that placed their lives and livelihoods at risk without consideration to those issues nor consultation (no representation in Parliament).  To some degree, the Constitution placing certain powers with Congress as representatives of "the people" was supposed to mitigate that problem and ensure that no executive could engage without the authorization of the people and due consideration of the hardships and burdens placed upon them.

At the same time, the founders gave command of the army and navy to the President.  First, in insured that, once the military was engaged there would be a single point of reference and direction, eliminating any potential contradictory orders or confusing, incoherent battle plans or strategies.  Second, it insured that no majority in congress could simply vote for a call up and use of the military to enact their own ends, domestically or on foreign soil.  The final movement to war could only be directed by the President.

In this way, they provided a "tension" between these powers to insure that neither branch of the government could act precipitously towards war without the engagement and acceptance of the other.  It also insured that the example of "Carthage", where the Senators dawdled over declaring a third war with Rome, eventually leading to their defeat and utter destruction (ie, sowing the fields with salt) would not befall this Republic.  Our founders were by and far educated in the classical sense and would have understood the inherent problems of leaving all war decisions to a “committee”. In short, they invested both bodies with just enough power to ensure they could act to some degree without the other while also setting limits that would make it nearly impossible to act or continue to act without conferring and agreeing with one another. 

The Constitution was written and subsequently ratified in 1789 when the United States had disbanded most of its Navy and rescinded orders of "marque".  They had also disbanded most of their standing army with the exception of a few garrisons in outposts along the frontier.  The rest of the armed forces were almost all comprised of state militias that drilled on limited occasions, were called out for ceremonial escorts or in times of violent unrest from citizens or hostile natives.  In a very real sense, both Congress and the President were physically limited from acting "war-like" by the near non-existence of a standing military or naval force.

Further, the condition of the coffers of the central government also prevented extensive call up or use of military forces.  One of the reasons that the Constitution came into being in the first place was because the central government did not have the power to collect taxes to pay any debts.  And, without centrally located funds or ability to pay debts, the nation was a risky bet for creditors such as those in the Netherlands that had already loaned $10 million to the cause of revolution.  

The Constitution somewhat negated that fact, but the central government had very few collectible, monetary resources to spend.  Literally, to declare war and call up the army, the President was beholding to congress to raise the funds to call up and outfit the necessary forces.  Congress was beholding to the people for those very human and monetary resources.  It seemed a perfect tension and limitation to the will of the people.

What happened?  The Real World Happened.