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Chris Weigant

Chris Weigant

Posted: October 29, 2007 05:57 PM

War Powers Constitutional Showdown Brewing


Six House members -- three Republicans and three Democrats -- have joined together to introduce legislation strengthening the 1973 War Powers Act which (if successful) could mean a showdown on the separation of powers before the Supreme Court. This showdown may determine once and for all the limits of the president to order American troops into battle.

Of course, I have no idea what chances this new legislation has for passing Congress as a whole, but the astonishing thing is that it is being ignored almost totally by the mainstream media, which is a shame. Because it deserves debating now, while the White House seemingly is preparing the American public for yet another war (this time against Iran).

First, the facts. Republican Walter B. Jones (R-NC) together with co-sponsors Delahunt (D-MA), Abercrombie (D-HI), Brady (D-PA), and Gilchrest (R-MD) announced the bill last Thursday. The final sponsor (which should come as no surprise to anyone paying attention), was presidential candidate Ron Paul (R-TX). The media, except for one story in a local North Carolina paper and one story from Voice of America, completely ignored their announcement. From the VOA story:

"Congress must be fully informed before sending Americans into harm's way, said Congressman Jones. "Congress must not be a rubber stamp for the executive branch but a check in our system of checks and balances."

. . .

Lawmakers would change the existing war powers law to permit a president to initiate short-term military deployments without congressional action but only repel and retaliate for an attack on the United States or U.S. troops, or to protect and evacuate U.S. citizens.

The president would have to submit a detailed report within 48 hours on the justification, scope, duration and estimated costs, as well as an assessment of the impact on U.S. diplomacy, and an assessment of post-hostility scenarios.

A little history on the matter is in order here. The Constitution has two passages which define war powers, and seem to divide these powers between the president and congress. The two relevant sections are:

Article II, Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States

Nowhere does the Constitution actually define the term "commander in chief" or what the powers of such a title are. It is much more specific about what the congressional powers are.

Article I, Section 8. The Congress shall have power...

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress

Since none of this explicitly answers the question: "When and how can the commander in chief order troops into battle in a foreign country?" it has been a debatable subject ever since. Added to this vagueness is the fact that the United States hasn't actually declared a war since World War II.

Congress did try to clarify this situation at the end of our last massively unpopular war (or, more properly "police action") in Vietnam. Hence the War Powers Act (or "Resolution," if you prefer) of 1973, which attempts to lay down some rules for how and when the president can use America's armed forces.

The only problem is, this has resulted in a standoff between the branches of government which continues to this day. Since 1973 American soldiers have repeatedly been used in numerous countries around the world, and every president has given lip service to the Act, but they've always done so under protest -- basically asserting "this Act is a usurpation of Executive power and is probably unconstitutional, but to avoid a showdown I am complying with it... for now." The White House opinion may in fact be justified -- that this is a power grab by Congress and (since that is unconstitutional), the Act can be safely ignored.

But the key is -- this has never been tested in the courts. The Supreme Court has never ruled on this issue, one way or another. So we really don't know if it is unconstitutional or whether Congress is completely within its power to "make rules for the government and regulation of the land and naval forces."

As I stated, I truly have no idea what chances such legislation has of passing Congress, especially in an election season, and most especially when we appear to be approaching the brink of yet another foreign war.

But politics aside, such an important Constitutional question deserves one heck of a lot more attention than it is getting, don't you think?

 

Chris Weigant blogs at: ChrisWeigant.com