- - Sunday, January 19, 2020

America’s latest round of hostilities with Iran has sparked a renewed debate about the limits of executive power in war and foreign policy, and in so doing has exposed a dangerous philosophy on the neoconservative right: the notion that the president can initiate a war without congressional approval.

And not just a philosophy, but at least a tacitly governing philosophy in the Trump White House, as Sen. Mike Lee found last week when he was unable to secure a commitment from the administration that assassinating Iran’s supreme leader himself — and precipitating open war with Iran — would fall outside the limits of congressional authorization for the use of force.

But even as Mr. Lee and other senators introduce legislation to limit the president’s war powers, some conservative pundits are calling for them to be expanded.

The Daily Wire’s Josh Hammer laid out the case in a recent article, titled “The War Powers Resolution Is, And Always Has Been, Unconstitutional.”

Given the title and the thumbnail featuring a shot of America’s highest law, I was excited to see the article cross my newsfeed. As a Ron Paul Republican, I instinctively agree with the sentiment that the War Powers Act should never have been passed. It hands dangerous extraconstitutional power to the Executive Branch and effectively allows the president to commit the U.S. to conflict anywhere in the world without accountability to Congress until well into the fight. While this power would have been risky enough in the days of John Paul Jones, when armies took weeks to marshal and move, it’s downright reckless in the age of satellites and drones.



Mr. Hammer and other Republicans, however, find the War Powers resolution, which gives the president the ability to deploy U.S. forces abroad without congressional consent for up to 60 days, too restrictive.

Writes Mr. Hammer: “It is the president of the United States, under Article II’s Commander in Chief Clause, who is actually responsible for initiating and conducting hostilities. Congress can then intervene to halt a president it views as a reckless warmonger using the manifold tools it does have at its disposal: Decreasing the size of the Pentagon’s budget, going line item-by-line item and removing various offensive-oriented materiel from the Department of Defense’s arsenal, or using its more general power of the purse to defund a war effort in its entirety (as eventually happened with Vietnam).”

He’s not the first to suggest the idea, and cites a couple scholarly legal opinions along the way to his conclusion — citations that serve the critical function of elevating the conclusion from plain nonsense, to scholarly nonsense.

There are two very commonsense problems with this argument.

The first and most obvious is this: Wars are neither casually engaged, nor easily departed — and that means initiation is everything.

The Founding Fathers understood this and rightly feared a government beholden to the militaristic whims of a monarch. Alexander Hamilton, arguably the most vociferous defender of a muscular Executive Branch, conceded as much in Federalist #69. 

“The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king 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.”

The president’s inability to initiate hostilities with a foreign power irrespective of the will of the people as expressed through Congress was a feature of the new U.S. Constitution and a key differentiator from the English Crown. The idea of an imperial presidency with the power to unilaterally start wars or, say, assassinate foreign dignitaries without congressional authorization, would not only have been unthinkable to even the most ardent constitutional apologists; it would have rendered one of their major arguments for adoption superfluous.

Second, the notion that Congress can simply starve the president out of a war once committed is a fantasy admissible only in a nation so militarily superior to the rest of the world that war has become a flippant, almost tabletop affair. 

It’s been more than 200 years since a foreign army showed up in Washington and burned the White House, and in that time we seem to have forgotten what a defensive war looks like. Most of our recent conflicts, including Mr. Hammer’s example of Vietnam, never posed an imminent threat to the U.S. mainland, except by virtue of their proxy status, and thus became more academic than existential debates. 

It’s absurd to suggest that Congress would have starved the war effort had bombs been falling on the California coast.

In their haste to justify further overseas intervention, the neoconservative right is justifying out-of-control executive supremacy and reducing Congress’ pre-eminent constitutional warmaking power to a ribbon-cutting formality.

But worst of all, in denying the constitutional structure of war powers, they miss the intent behind it — that the nation should not be plunged into war and destruction at the whim of a single man, without the consent of the people’s representatives in Congress assembled.

• Joel Kurtinitis is a columnist for the Des Moines Register.

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