Since World War II, the congressional power to declare war or otherwise authorize the initiation of military hostilities has been hijacked by the executive branch.
Despite the original intent of the Founding Fathers, the prevailing custom is for the president to determine whether to move the nation from a state of peace to a state of war, i.e., to make intentional killings legal. In some cases, the president has acted unilaterally. President Harry Truman commenced war against North Korea in 1950 without obtaining congressional authorization. He relied on a United Nations resolution that had never been presented to Congress. When the treaty to ratify the United Nations Charter was before the Senate, however, Truman promised that, "When any such [U.N.] agreement or agreements [for military operations] are negotiated it will be my purpose to ask Congress for appropriate legislation to approve them."
In 1999, President William Jefferson Clinton initiated hostilities against Yugoslavia despite twin votes in the House of Representatives against declaring or authorizing war.
In other cases, the president has obtained sheeplike congressional acquiescence to requests to authorize war. The Gulf of Tonkin Resolution of 1964 concerning South Vietnam and the Joint Resolution of 2002 concerning Iraq are exemplary. Indeed, Congress agreed to place the nation on a permanent war footing in its 2001 Authorization to Use Military Force against international terrorism.
Generally speaking, Congress has been relegated to deciding whether ongoing hostilities precipitated by presidential action should be limited or ended by a curtailment of funding. Even that option may be more illusory than real. The president can veto prohibitions on expenditures for specified war purposes, for example, a denial of funds to expand the war in Iraq to Iran. Two-thirds majorities in both chambers are necessary to override a veto, whereas simple majorities can block an authorization to initiate or expand war.
In addition, the president may have stumbled into a military predicament with no attractive exit strategies. At present, that describes the quagmire in Iraq. An immediate or phased withdrawal of U.S. military forces would unleash a civil war there; boost the fortunes of arch-enemy Iran; and, jeopardize needed oil and gas supplies. Iraq may never be capable of defending its current political dispensation from domestic or foreign foes. The president has boxed Congress into supporting endless military stalemate in Iraq at the cost of American lives and staggering expenditures by seizing the war initiative.
Making war easy rather than hard to initiate by substituting unilateral presidential action in lieu of wary congressional deliberation has endangered checks and balances and cherished constitutional liberties while weakening rather than strengthening national security.
According to a recently declassified document, the Justice Department opined in 2001 that in the perpetual war against international terrorism, the military is unconstrained by the Fourth Amendment in arresting, searching or spying on U.S. citizens — a tyranny practiced by King George III that provoked the American Revolution.
Congress should redress the situation through a concurrent resolution declaring its intent to impeach, convict and remove from office any president who initiates military combat without express congressional authorization. To paraphrase philosopher Sam Johnson, a president's knowledge that he may be evicted from the White House in a fortnight for usurping war powers should concentrate his mind wonderfully.
The Founding Fathers disfavored the initiation of war (in contrast to repelling sudden attacks like Pearl Harbor). They understood, as later articulated by Gen. William Tecumseh Sherman, that "War is hell." Youths are slaughtered. Innocent civilians die. Taxing and spending soar. And the benefits to American citizens of commencing war are customarily tiny relative to the lives and limbs lost. What advantages are citizens deriving from the trillion-dollar war in Iraq? It is creating more enemies of the United States than are being killed.
The Founding Fathers were also reluctant to initiate military hostilities because Republics degenerate into despotisms by fighting too many wars, not too few. They feared the president would be eager for warfare to secure fame; to dispense honors and contracts; to spy on political enemies; to exert a monopoly over foreign intelligence to frighten or mislead Congress; to boost popularity; or, to distract attention from domestic troubles.
Accordingly, father of the Constitution James Madison warned: "Of all the enemies of public liberty, war is perhaps the most to be dreaded because it comprises and develops of the germ of every other." The United States remained aloof from the multiple wars of independence fought against Spain in Latin America in the early 1800s; and, declined to participate in the Panama conference of 1826.
Putting the Constitution aside, barriers to presidential wars should be erected because presidents are attracted to warfare irrelevant or harmful to the Republic or the welfare of its citizens.
Suppose the Vietnam War had never been fought because Congress had balked at the Gulf of Tonkin resolution? Would a single American have suffered? Suppose the United States in 1999 had desisted from war against Yugoslavia to protect Kosovar Albanians? Would a single American have suffered? Suppose the United States had forgone the 2003 invasion of Iraq. Would a single American have suffered?
If every dollar spent and soldier deployed in those conflicts had been dedicated to strengthening defense systems in the United States, the American people would be safer and wealthier.
An impeachment sword of Damocles should hang over the head of any president contemplating the unilateral initiation of war.
Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.