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Recasting the Constitution

War with Iraq likely approaches, and it may be only the first of many if the Bush administration follows seriously its new doctrine of preemption. At least Congress voted on the record. Alas, if Iraq is any guide, Congress will only wave on this president or his successors in a future case, leaving them with plenary authority to go to war. And conservatives who now speak of remaking the judiciary to respect the Constitution will be leading the parade to abdicate Congress’ responsibility.

Indeed, the president never even acknowledged that he would have been constitutionally bound by a “no” vote. If he was not, his request for a resolution was meaningless. White House lawyers reportedly told President Bush that he does not need congressional authority to go to war. Still, he sought legislative approval, or at least some form of “support,” for political reasons. But the Constitution explicitly requires the Congress to “declare war.” And the Founders’ undoubted intention, even while recognizing the president’s need to be able to respond defensively in an emergency, was to limit his war-making authority.

Virginia’s George Mason, for instance, spoke of “clogging rather than facilitating war.” Thomas Jefferson wrote of creating an “effectual check to the dog of war by transferring the power of letting him loose.” Even Alexander Hamilton agreed. He reassured his countrymen in Federalist 69 that the president’s authority was “in substance much inferior to [monarchical power]. It would amount to nothing more than the supreme command and direction of the land and naval forces … while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all of which by the Constitution would appertain of the legislature.”

Alas, Bush 43 seems to be following in the footsteps of Bush 41. The latter said “I don’t think I need it” when asked if congressional approval was necessary before attacking Iraq more than a decade ago. Why? “Many attorneys,” he said, had “so advised me.” Too bad neither Bush apparently reads the Constitution himself.

The president is the commander-in-chief, but only within the legal framework established by the Constitution and Congress. He cannot just create a military—Congress must authorize the forces and approve the funds. Congress is also tasked with setting rules of war and organizing the militia. The president can negotiate a treaty ending a conflict, but the Senate must ratify it.

If the president can unilaterally order an attack on a nation halfway around the globe, which has not attacked the U.S., posed an imminent threat, or provided a traditional casus belli, the Constitution is dead. And if conservatives treat the Constitution as dead when it suits them, they should stop complaining when federal judges, liberal activists, and Democratic politicians do the same.

Consider for a monent how this disdain for the Constitution might look if applied to other issues. Why, for instance, require congressional approval to impose taxes and borrow money? To be sure, the Constitution lists this as one of the legislature’s enumerated powers, but that outmoded provision need not dictate present policy, especially as Congress itself long ago dropped any pretense that the lack of explicit constitutional authority limited its power.

If the president sees a critical need, he should not have to wait for Congress to act—and certainly not if selfish, petty, and politically minded legislators say “no.” Nor should the nation’s fiscal health be impaired by pork-minded congressmen who lard essential bills with special interest subsidies. Whatever the merits of the Founders’ scheme two centuries ago, the president should be able to cut wasteful spending on his own authority, without having to veto entire bills or fear being overridden.

Article 1, Section 8 also empowers Congress to “establish an uniform Rule of Naturalization” as well as bankruptcy and patent laws. But look at what a mess legislators have made of the first, with foreigners coming to America to kill. Populists are doing their best to block bankruptcy reform, despite manifold abuses by debtors who want to take the money and run. Patents involving pharmaceuticals are currently subject to a bitter congressional fight. Forget the Constitution: Let the president decide. monopoly.

The problem of judicial activism would have disappeared had President Franklin Delano Roosevelt been able to pursue his “court-packing” plan. Why should some abstract constitutional provisions and congressional intransigence have prevented him from doing what had to be done? Indeed, we could dispense with congressional approval of presidential nominations. The Senate’s “advise and consent” function is outmoded; the president should simply declare his nominees to be in office.

Moreover, consider the potential of executive predominance during the ill-fated health care debate of 1993-1994. The crisis should have been obvious to all but the most reactionary partisan. Tens of millions of people without health insurance, sharply rising medical and insurance costs, growing popular dissatisfaction with the system. Yet rather than working with the president, Congress thwarted Bill Clinton’s efforts. The GOP was especially shameless, using the issue for its own electoral gain.

Now, almost a decade later, the same problems remain with us. If only the president had had the courage to act unilaterally. Consider the speech that he could have given explaining why he was putting the Health Security Act into effect on his own authority: “I realize that some people of good will believe that the Constitution gives this power to Congress. But there are few issues more important than Americans’ health. Many lawyers have told me that the Constitution established an energetic chief executive, vesting him with final authority for protecting the public. Other presidents have shared this view, using their power to issue executive orders and regulations to solve problems when Congress failed to fulfill its responsibilities. In my view, that requires acting to assure secure health care for all Americans.”

But why stop there? The Constitution’s electoral scheme is notably defective. The mere fact that more than two centuries ago some dead white males concocted a system as cumbersome as the Electoral College does not mean that we should follow it today. And if Congress will not approve a constitutional amendment to fix it, why should the president not unilaterally recognize the candidate who has greater popular legitimacy by winning the most votes?

What is most surprising is not that presidents routinely attempt to expand their war power authority, but that Congress is so ready to surrender its power. Of course, the partisan pirouettes are staggering. Democrats outraged at what they saw as persistent abuses by Presidents Nixon, Reagan, and Bush suddenly gained a strange new respect for executive power when President Bill Clinton was preparing to invade Haiti and attack Serbia. Republicans routinely defended executive privilege by “their” presidents and criticized Bill Clinton’s propensity unilaterally to bomb other countries.

Still, why surrender the most important power, whether or not to go to war, to a competing branch? The U.S. Constitution says that the Congress decides what needs to be done. Today, anyway, many Republicans might prefer that the Constitution read differently. It does not.

The last president who understood this was Dwight Eisenhower, one of the few chief executives with command experience in the military. He respected the Constitution enough to announce, “When it comes to the matter of war, there is only one place that I would go, and that is to the Congress of the United States.”

For all of the bizarre constitutional interpretations emanating from law schools, courts, and op-ed pages, most people recognize that the president’s domestic powers are circumscribed by the law of the land. So too are his war powers.


Doug Bandow is a senior fellow at the Cato Institute.

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