Adam Cohen: Congress, the Constitution and War: The Limits on Presidential Power





... The Constitution’s provision that the president is the commander in chief clearly puts him at the top of the military chain of command. Congress would be overstepping if, for example, it passed a law requiring generals in the field to report directly to the speaker of the House.

But the Constitution also gives Congress an array of war powers, including the power to “declare war,” “raise and support armies” and “make rules concerning captures on land and water.” By “declare war,” the Constitution’s framers did not mean merely firing off a starting gun. In the 18th century, war declarations were often limited in scope — European powers might fight a naval battle in the Americas, for example, but not battle on their own continent. In giving Congress the power to declare war, the Constitution gives it authority to make decisions about a war’s scope and duration.

The Founders, including James Madison, who is often called “the father of the Constitution,” fully expected Congress to use these powers to rein in the commander in chief. “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it,” Madison cautioned. “It has accordingly with studied care, vested the question of war in the Legislature.”

In the early days of the republic, the Supreme Court made clear that Congress could limit the president’s war powers — notably in the Flying Fish case. In 1799, during the “Quasi War,” the undeclared sea war between the United States and France, Congress authorized President John Adams to clamp down on trade between the two nations by stopping ships headed to French ports. But Adams went further, ordering commanders to stop ships that were sailing to or from a French port.

When the Flying Fish was seized while sailing from a French port — something Congress had not authorized — the ship’s owner sued. The Supreme Court decided in his favor, ruling that the president had no right to issue the order he did. John Marshall, the nation’s greatest chief justice, declared that even in a time of hostilities, a president’s decision to act militarily beyond what Congress had authorized was “unlawful.”

The court has repeatedly reinforced this principle. In 1952, in the steel seizure case, it ruled that President Harry Truman could not seize steel mills to avert a strike — even though steel was needed for the Korean War — because Congress had set out a different way of handling the labor unrest. More recently, in Hamdan v. Rumsfeld, it held that President Bush must follow Congressional guidelines when he sets up military tribunals for detainees.

Past Congresses have enacted just the sort of restrictions the Bush administration is trying to foreclose today. During the Vietnam War, the Foreign Assistance Act of 1974 capped the number of American military personnel in South Vietnam at 4,000 within six months. The Lebanon Emergency Assistance Act of 1983 required the president to get Congress’s approval for any substantial increase in the number or role of armed forces in Lebanon....


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DeWayne Edward Benson - 2/28/2007

Actually, Presidents have bypast Congressional and Judicial decision before, only because the Congressional and Judicial violated their oath of Office and did nothing. We have had wars and military excursions all over the world, all of which Congress (still) have not Declared as War's.
Pres-Reagan despite the Posse Commitatus Act sent military to an East Coast State prison uprising, Pres-Clinton authorized both US Delta Force and British SAS forward deployed at the WACO-Texas massacre of women and children.
The Presidential "Emergency War Powers" will be found nowhere within the Constitution as authorized for the Executive Office. Yet all of the forementioned happened.
As far as the Tribunals, if anyone would take the time to read Article 3 of the Constitution, they would discover any American caught working for the enemy, even in time of war, does not come under Presidential authorities, or even severe rendition programs. These in the Constitution are called Traitors and come under the authority and responcibility of the Legislative branch. These 'traitors' are also given all the rights of the Bill of Rights, and no where is given a President the authority to send them to say Syria for torture.


DeWayne Edward Benson - 2/28/2007


William R. Everdell - 1/31/2007

Once Upon a Time, the Senate had a sense that it stood as a designated bulwark against presidential dictatorship. The speech below was heard on February 11, 1847. The War was the one on Mexico. No Congressional declaration; not even a Congressional resolution. And it was being discovered, by Rep. A. Lincoln and other Whigs, that the war had begun with a presidential lie that the U.S. was under attack. Very little needs to be added to this speech to bring it 160 years forward to the present.

Senator Thomas Corwin (1794-1865) of Ohio, Whig, excerpts from his speech against the Mexican War in the Senate on February 11, 1847.

[...] No, sir, looking at the events of the last twelve months, and forming his judgment of these by the suggestions which history teaches, and which she alone can teach, he would record another of those sad lessons which, though often taught, are, I fear, forever to be disregarded. He would speak of a republic, boasting that its rights were secured, and the restricted powers of its functionaries bound up in the chains of a written Constitution; he would record on his page, also, that such a people, in the wantonness of strength or the fancied security of the moment, had torn that written Constitution to pieces, scattered its fragments to the winds, and surrendered themselves to the usurped authority of ONE MAN.

He would find written in that Constitution, Congress shall have power to declare war; he would find everywhere, in that old charter, proofs clear and strong, that they who framed it intended that Congress, composed of two Houses, the representatives of the states, and the people, should (if any were pre-eminent) be the controlling power. He would find there a President designated; whose general and almost exclusive duty it is to execute, not to make the law. Turning from this to the history of the last ten months, he would find that the President alone, without the advice or consent of Congress, had, by a bold usurpation, made war on a neighboring republic; and what is quite as much to be deplored, that Congress, whose high powers were thus set at naught and defied, had, with ready and tame submission, yielded to the usurper the wealth and power of the nation to execute his will, as if to swell his iniquitous triumph over the very Constitution which he and they had alike sworn to support.

If anyone should inquire for the cause of a war in this country, [204] where should he resort for an answer? Surely to the journals of both Houses of Congress, since Congress alone has power to declare war; yet, although we have been engaged in war for the last ten months, a war which has tasked all the fiscal resources of the country to carry it forward, you shall search the records and the archives of both Houses of Congress in vain for any detail of its causes, any resolve of Congress that war shall be waged. How is it, then, that a peaceful and peace-loving people, happy beyond the common lot of man, busy in every laudable pursuit of life, have been forced to turn suddenly from these and plunge into the misery, the vice and crime which ever have been, and ever shall be, the attendant scourges of war? The answer can only be, it was by the act and will of the President alone, and not by the act or will of Congress, the war-making department of the government. . . .

When the makers of that Constitution assigned to Congress alone, the most delicate and important power—to declare war—a power more intimately affecting the interests, immediate and remote, of the people, than any which a government is ever called on to exert—when they withheld this great prerogative from the Executive and confided it to Congress alone, they but consulted in this, as in every other work of their hands, the gathered wisdom of all preceding times. Whether they looked to the stern despotisms of the ancient Asiatic world, or the military yoke of imperial Rome, or the feudal institutions of the middle ages, or the more modern monarchies of Europe, in each and all of these, where the power to wage war was held by one or by a few, it had been used to sacrifice, not to protect the many. The caprice or ambition of the tyrant had always been the cause of bloody and wasting war, while the subject millions had been treated by their “remorseless masters, only as “tools in the hands of him who knew how to use them. II They therefore declared that this fearful power should be confided to those who represent the people, and those who here in the Senate represent the sovereign states of the republic. After securing this power to Congress, they thought it safe to give the command of the armies in peace and war to the President. We shall see hereafter, how by an abuse of his power as commander-in-chief, the President has drawn to himself that of declaring war, or commencng hostilities with a people with whom we were on terms of peace, which is substantially the same.
The men of former times took very good care that your standing army should be exceedingly small, and they who had the most lively apprehensions of investing in one man the power to command the army, always inculcated upon the minds of the people the necessity of [206] keeping that army within limits, just as small as the necessity of the external relations of the country would possibly admit. It has happened, Mr. President, that when a little disturbance on your Indian frontier took place, Congress was invoked for an increase of your military force. Gentlemen came here who had seen partial service in the armies of the United States. They tell you that the militia of the country is not to be relied upon—that it is only in the regular army of the United States that you are to find men competent to fight the battles of the country, and from time to time when that necessity has seemed to arise, forgetting this old doctrine, that a large standing army in time of peace was always dangerous to human liberty, we have increased that army from six thousand up to about sixteen thousand men. Mr. President, the other day we gave ten regiments more; and for not giving it within the quick time demanded by our master, the commander-in-chief, some minion, I know not who, for I have not looked into this matter until this morning, feeding upon the fly-blown remnants that fall from the Executive shambles and lie putrefying there, has denounced us as Mexicans, and called the American republic to take notice, that there was in the Senate, a body of men chargeable with incivism—Mexicans in heart—traitors to the United States. . . .

It must have occurred to everybody how utterly impotent the Congress of the United States now is for any purpose whatever, but that of yielding to the President every demand which he makes for men and money, unless they assume that only position which is left—that which, in the history of other countries, in times favorable to human liberty, has been so often resorted to as a check upon arbitrary power—withholding money, refusing to grant the services of men when demanded for purposes which are not deemed to be proper.

When I review the doctrines of the majority here, and consider their application to the existing war, I confess I am at a loss to determine whether the world is to consider our conduct as a ridiculous farce, or be lost in amazement at such absurdity in a people calling themselves free. The President, without asking the consent of Congress, involves us in war, and the majority here, without reference to the justice or necessity of the war, call upon us to grant men and money at the pleasure of the President, who they say, is charged with the duty of carrying on the war and responsible for its result. If we grant the means thus demanded, the President can carry forward this war for any end, or from any motive, without limit of time or place.

With these doctrines for our guide, I will thank any Senator to furnish me with any means of escaping from the prosecution of this or [207] any other war for a hundred years to come, if it pleased the President who shall be, to continue it so long. Tell me, ye who contend that being in war, duty demands of Congress for its prosecution all the money and every able-bodied man in America to carry it on if need be; who also contend that it is the right of the President, without the control of Congress, to march your embodied hosts to Monterey, to Yucatan, to Mexico, to Panama, to China, and that under penalty of death to the officer who disobeys him—tell me, I demand it of you, tell me, tell the American people, tell the nations of Christendom, what is the difference between your American democracy and the most odious, most hateful despotism, that a merciful God has ever allowed a nation to be afflicted with since government on earth began? . . .
[…]
All this mass of undeniable fact, known even to the careless reader of the public prints, is so utterly at war with the studiously-contrived statements in your cabinet documents, that I do not wonder at all that an amiable national pride, however misplaced here, has prevented hitherto a thorough and fearless investigation of their truth. Nor, sir, would I probe this feculent mass of misrepresentation, had I not been compelled to it in defense of votes which I was obliged to record here, within the last ten days. Sir, with my opinions as to facts connected with this subject, and my deductions, unavoidable, from them, I should have been unworthy the high-souled State I represent, had I voted men and money to prosecute further a war commenced, as it now appears, in aggression, and carried on by repetition only of the original wrong. Am I mistaken in this? If I am, I shall hold him the dearest friend I can own, in any relation of life, who shall show me my error. If I am wrong in this question of fact, show me how I err, and gladly will I retrace my steps; satisfy me that my country was in peaceful and rightful possession between the Nueces and Rio Grande when General Taylor’s army was ordered there; show me that at Palo Alto and Resaca de las Palmas blood was shed on American soil in American possession, and then, for the defense of that possession, I will vote away the last dollar that power can wring from the people, [212] and send every man able to bear a musket to the ranks of war, But until I shall be thus convinced, duty to myself, to truth, to conscience, to public justice, requires that I persist in every lawful opposition to this war.

While the American President can command the army, thank Heaven I can command, the purse. While the President, under the penalty of death, can command your officers to proceed, I can tell them to come back, or the President can supply them as he may, He shall have no funds from me in the prosecution of a war which I cannot approve, That I conceive to be the duty of a Senator, I am not mistaken in that. If it be my duty to grant whatever the President demands, for what am I here? Have I no will upon the subject? Is it not placed at my discretion, understanding, judgement? Have an American Senate and House of Representatives nothing to do but obey the bidding of the President, as the army he commands is compelled to obey under penalty of death? No! The representatives of the sovereign people and sovereign States were never elected for such purposes as that.

When, in 1688, the doctrine of specific appropriations became a part of the British constitution, the King could safely be trusted with the, control of the army, If war is made there by the Crown, and the Commons do not approve of it, refusal to grant supplies is the easy remedy—one, too, which renders it impossible for a king of England to carry forward any war which may be displeasing to the English people, Yes, sir, in England, since 1688, it has not been in the power of a British sovereign to do that, which in your boasted republic, an American president, under the auspices of what you call democracy, has done—make war, without consent of the legislative power, In England, supplies are at once refused, if Parliament does not approve the objects of the war, Here, we are told, we must not look to the objects of the war, being in the war—made by the President—we must help him to fight it out, should it even please him to carry it to the utter extermination of the Mexican race, Sir, I believe it must proceed to this shocking extreme, if you are, by war, to “conquer a peace,” Here, then, is your condition, The President involves you in war without your consent, Being in such a war, it is demanded as a duty, that we grant men and money to carry it on, (above, ed., Daniel Walker Howe, in The American Whigs)
[…]
17 What has been the fate of all nations who have acted upon the idea that they must advance! Our young orators cherish this notion with a fervid but fatally mistaken zeal. They call it by the mysterious name of “destiny.” “Our destiny,” they say, is “onward,” and hence they argue, with ready sophistry, the propriety of seizing upon any territory and any people that may lie in the way of our “fated” advance. Recently these progressives have grown classical; some assiduous student of antiquities has helped them to a patron saint. They have wandered back into the desolate Pantheon, and there, among the polytheistic relies of that “pale mother of dead empires,” they have found a god whom these Romans, centuries gone by, baptized “Terminus.”

Sir, I have heard much and read somewhat of this gentleman Terminus. Alexander, of whom I have spoken, was a devotee of this divinity. We have seen the end of him and his empire. It was said to be an attribute of this god that he must always advance and never recede. So both republican and imperial Rome believed. It was, as they said, their destiny. And for a while it did seem to be even so. Roman Terminus did advance. Under the eagles of Rome he was carried from his home on the Tiber to the farthest East on the one hand, and to the far West, among the then barbarious tribes of western Europe, on the other.


But at length the time came when retributive justice had become “a destiny.” The despised Gaul calls out the contemned Goth, and Attila with his Huns answers back the battle-shout to both. The “blue-eyed nations of the North,” in succession or united, pour forth their countless hosts of warriors upon Rome and Rome’s always-advancing god Terminus. And now the battle-ax of the barbarian strikes down the conquering eagle of Rome. Terminus at last recedes, slowly at first, but finally he is driven to Rome, and from Rome to Byzantium. Whoever would know the further fate of this Roman deity, so recently taken under the patronage of American democracy, may find ample gratification of his curiosity in the luminous pages of Gibbon’s “Decline and Fall.”


Such will find that Rome thought as you now think, that it was her destiny to conquer provinces and nations, and no doubt she sometimes said, as you say, “I will conquer a peace,” and where now is she, the mistress of the world? The spider weaves his web in her palaces; the owl sings his watch-song in her towers. Teutonic power now lords it over the servile remnant, the miserable memento of old and once omnipotent Rome. (above, ed., W. J. Bryan, on Bartleby.com, taken by LawReader.com)

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