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Bruce Fein

Bruce Fein

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McCain Dethrones the Rule of Law

Posted: 05/31/11 11:45 AM ET

Sneering at the Constitution and the War Powers Resolution, Senator John McCain (R. Ariz.) bugled last week, "No president has ever recognized the constitutionality of the War Powers Act, and neither do I. So I don't feel bound by any [60 day] deadline" to obtain congressional authorization to continue hostilities against Libya ordained by the Act.

The 2008 Republican presidential candidate effused over unlimited presidential war-making, insinuating that the downfall of the Republic would come from fighting too few wars, not too many: "Any President, Republican or Democrat, should be able to deploy armed forces whenever and wherever he deems necessary." Earlier in his political career, Senator McCain admonished that Congress has no "right to declare peace," and trumpeted: "[T]he fact is that the President of the United States is given the responsibility, the most grave responsibility of sending into harm's way our greatest national treasure, our young men and women."

Senator McCain's blather betrayed a sub-literate understanding of the Constitution and infidelity to his oath of office. The latter requires him to demand the impeachment and removal of President Obama for the greatest usurpation of congressional authority in the history of the United States. Instead, the Senator is conspiring with the president to facilitate the usurpation.

On McCain's gospel hangs an alarming tale. The rule of law has been dethroned and the president has been endowed with absolute power as the American Empire has eclipsed the American Republic.

Eleven score and fifteen years ago, our forefathers brought forth a new nation dedicated to the proposition that the law is king. They recognized that crowning the president with power to commence war unilaterally would be the death knell of the Republic. Thomas Paine sermonized in Common Sense, the Bible of the American Revolution, that "as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other."

In times of war, the law is silent and the executive is omnipotent. The Founding Fathers thus erected constitutional barriers against fighting too many wars. None fretted about fighting too few. Arresting portions of the Constitutional Convention of 1787 and the explanatory Federalist Papers were devoted to safeguards against military supremacy and the overthrow of civilian government.

The most important check against gratuitous wars that squander the lives and limbs of brave American soldiers was Article I, section 8, clause 11. It fastened on Congress exclusive responsibility for commencing war. Legislative power diminishes in wartime. Legislators have no incentive to concoct danger or other excuses to abandon peace. The president, in contrast, is strongly tempted towards war to aggrandize power and earn a place on Mount Rushmore. James Madison, father of the Constitution, elaborated with signature genius in a letter to Thomas Jefferson: "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. It has accordingly with studied care vested the question of war in the Legislature."

Madison amplified in a written exchange with Alexander Hamilton under the pseudonym Helvidius:

In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.

James Wilson underscored at the Pennsylvania Ratifying Convention,

This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war.

Abraham Lincoln exposed Senator McCain's Orwellian warping of the Constitution:

Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose -- and you allow him to make war at pleasure.... Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, to-day, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, "I see no probability of the British invading us" but he will say to you "be silent; I see it, if you don't."


The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.


John Bassett Moore, an authoritative scholar of international law, observed:

There can hardly be room for doubt that the framers of the constitution, when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory, and killing their soldiers and citizens, all according to his own notions of the fitness of things, as long as he refrained from calling his action war or persisted in calling it peace.

Supreme Court Justice Robert Jackson voiced alarm at presidential war-making in his concurring opinion in Youngstown Sheet & Tube v. Sawyer:

[N]o doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.

In sum, there is nothing in the text, subtext, context or judicial interpretation of the Constitution that empowers the president to initiate war without prior congressional authorization. Yet presidential lawlessness persists and metastasizes like a cancer without provoking congressional or public rebuke.

Executive branch violations of the Foreign Intelligence Surveillance Act, the Patriot Act, or the Convention Against Torture are ignored. The state secrets privilege is invoked to deny victims redress for torture or comparable constitutional wrongdoing. Suspected "enemy combatants" are detained indefinitely without accusation or trial. Military commissions supersede civilian courts. The United States claims unique authority to attack with predator drones or otherwise any nation on the planet to advance professed humanitarian causes, "regional stability," or the credibility of the United Nations Security Council.

The Department of Treasury or Board of Governors of the Federal Reserve print or spend money without proper congressional oversight or direction. Annual Pentagon spending approaching $1 trillion is not audited.

Depend upon it. The day will soon come when the president usurps the congressional power to tax and to spend to address an asserted economic emergency with impunity. Most Members of Congress will meekly submit to vassalage and rejoice at their escape from responsibility for anything non-trivial.

The final destruction of the Republic can be prevented if the American people vote to oust every Member of Congress and every president unfaithful to their oaths to uphold and defend the Constitution.

That would mark one of history's finest hours in self-government.