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

 

Comments

[terrilian]

CW "When and how can the commander in chief order troops into battle in a foreign country?"

The answer is here:

Article II, Section 2. The President shall be commander in chief ... when called into the actual service of the United States

That is, the president becomes the commander in chief of the military only AFTER Congress has declared war. Otherwise Congress is in charge of the military.

[Binx101]

It has been my personal opinion that the Democratic National Committee would do more good by promoting legislation instead of legislators. But in a more matter of fact way, that is to say, by investing in getting the information out.

The Right has 'well oiled' machinery, as it were; and the Left, sadly, has splintered into (sometimes) selfish groups that won't even unite in order to win the greater good. It's always, all or none. Barney Frank recently asked for some consideration from the LGBT community in order to make small progress. He's been labeled a co-conspirator. I've seen everything that Frank has publicly said about the matter or spoken - and - the afflicted far Left, that want it ALL now (this is the greater equal rights legislation), have been merciless in its criticism and if they had the opportunity to render Frank useless ... I have no doubt they would.

Perhaps that's the problem with the traditional media and the Left. There is no symbiosis as there is with the Right. It seems that even the lexicon - 'Mainstream' is a misnomer. How about 'Old Fashioned' - or - 'Last Century's' when referring to the Media that went into retirement since Ronald Reagan was posing as an intellectual. His best acting role ever.

Where are the Media ?? What happened to the Press ?? Did it all fade after the car chase with OJ? Was that turning point ?? Was it Lee Harvey Oswald being gunned down in the Criminal Courts building in Dallas ???

Wait - maybe it's the same as government and our elected officials. Maybe its us.

[Galvestonians for Dr. Ron Paul]

It is funny to hear senator Dodd and Biden, now throw up the constitution in the FISA blockage!
Where were they in August when it was on the floor before the break?

Oh well, leave it to Ron Paul to write(you conveniently forgot to mention) this bill, in its entirety, on the heated campaign trail. This man works tirelessly for our constitution and is never involved in shady dealings. He can hold his head high and walk the floor. Nothing is ever too criminal for him to prosecute,because he is so clean!
That is why we like him...
You can say a lot of things about Ron Paul, but
ANY Democratic candidate would kill for his voting record and lack of controversy!
He believes he receives his power from the people and to go against the people would undercut his true source of power.

This is a very telling interview.
He tells the people the truth.
Very much worth watching.

http://video.google.com/videoplay?docid=-8174691865292891844&q=ron+paul+brushfires&total=8&start=0&num=10&so=0&type=search&plindex=5

I noticed you did not have a link to read the bill!

CHRIS SAID:
"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)."

But you dont even put a link to read the bill,

How typical.

http://www.prisonplanet.com/articles/october2007/201007Freedom.htm
Go Ron Paul

[Chris Weigant responds:]

Sorry for not providing a link, I'm a little under the weather today, so chalk it up to being sick. Sorry about that. I usually get my legal info from LEXIS/NEXIS (which is a subscription service), so it was just lazy for me not to provide a link. The bill is (110th Congress) H.J.Res. 53.

Here is the text:

http://thomas.loc.gov/cgi-bin/query/z?c110:H.J.RES.53:

But although I did give Ron Paul some credit in my article, he in fact did not write this legislation. Sorry, but Congressman Walter B. Jones wrote it and introduced it on 9/25/07. And while the other four co-sponsors of the bill signed onto it on 10/3/07, Rep. Paul did not do so until 10/17/07. You can check the legislative history here:

http://thomas.loc.gov/cgi-bin/bdquery/z?d110:HJ00053:@@@L&summ2=m&

If either of those links don't work, just go to thomas.loc.gov and search for H.J.Res. 53 in this year's session of Congress for all the details.

Thanks for writing.

-CW

[Galvestonians for Dr. Ron Paul]

Nice try Chris....Not only did you not present a link, you did not put the right bill.(or any bill, for that matter.....Very convenient to write about a bill then not even address which bill, then when called you come out with a half written bill!!)
There is a big difference between HR53 and
HR 3835.
I think you will find the bill(3835) speaks to things not even addressed in hr53.
I would suggest you read both bills and read what other proposals Ron Paul offers in the Oct. 15th bill.
Things such as restoring Habeas Corpus, repealing the military commissions act,JOURNALIST EXCEPTION TO ESPIONAGE ACT,PRESIDENTIAL SIGNING STATEMENTS,USE OF SECRET EVIDENCE TO MAKE FOREIGN TERRORIST DESIGNATIONS,No Federal agency shall gather foreign intelligence in contravention of the Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq.). The President's constitutional power to gather foreign intelligence is subordinated to this provision.
The bill you speak of only addresses congressional war powers and does nothing for the other things listed above...
What I would suggest, though I have not spoken to Dr. Paul, is that he took the bill written(hr53) and built upon those ideas, thus hr 3835....But Pauls bill goes so much further. It actually repeals the presidential signing statements, restores habeas corpus, and so much more...
Naomi Wolf has asked her readers to call their reps and sign onto hr3835.
I do not think the bill you tout is strong enough....NOT STRONG AT ALL. So when you write of a bill, please make sure it is the right bill for America to get behind..
The one you tout does nothing really.
Read for yourself.

[Galvestonians for Dr. Ron Paul]

CONT FROM ABOVE:

(HR 53)
http://thomas.loc.gov/cgi-bin/query/F?c110:1:./temp/~c110oKy8UF:e2787:
(HR 3835)
http://thomas.loc.gov/cgi-bin/query/D?c110:2:./temp/~c110hSgTCp::

Again you may be right with the order of the actual signing of HR53, but the true bill to get behind is 3835
Sorry, Chris.....
Try to put partisan politics aside and do the right thing for the country.
BTW: none of your links worked, but Im pretty sure mine do, so everyone reading can check it out for them self and chose which one to get behind.

Nice try to keep the actual bill hidden.
Its a good thing the public has its eyes on open...Something this important could have been missed.
Im sorry you missed it.

[WNeuhauser]

The concept is good. The constitution is clear. But it is on many other fronts. Too much of the Supreme Court is currently an arm of the right-wing political party.

[grendl]

We're far more interested in watching Britney Spears drive over the feet of the paparazzi, Mr. Weigant.

Or how many millions A Rod is asking for his annual October naps.

Or whether or not Whoopi Goldberg has been able to kick her cigarette habit.

We're a shallow shallow people, who leave the matters of separation of powers to greater minds. Mainly because our opinions on such matters have been nullified in the past, as the Supreme Court did in 2001 following the pilfering of the presidency.

Tell us about Britney, and the rabbits, George...that's what we can handle.

BTW we need a new contest. My trophy shelf is looking bare.

[LeftRight]

No, we're not a shallow people. We have been convinced that we are a shallow people by a shallow and lazy press. Once the networks reallized that they could make money off the ads during a news broadcast, we were lost, since they did everything that they could to make sure that "entertaining" news took priority. The American people weren't completely buying it back then, so they went slow, until recently, when all that people think that they are interested in is the infotainment.

[RobertPaul]

The first thing that Congress should do is put a "Sunset" provision on any act that could be construed as allowing the Administration to go forward "unchecked" into the future.

The allowance by the Congress to attack Iraq should NOT be allowed to be approval to attack Iran.

BushCo should have to go back and justify the reasons to attack Iran.

If they could not do so then the attack that would surely follow (given Bushes track record) would surely be unconstitutional and therefor impeachable.

And if Pelosi did not support impeachment of the administration for attacking Iran, then SHE should be impeached!!!

This has gone on far enough.

We MUST set limits on the insanity that is the Bush/Cheney administration.

They do NOT act in the best interest of our Country.

They follow their own pursuits and the country be damned.

[Desiderata]

Does anybody think the current Bush Supreme Court will decide this matter in any other way than their boss wants them to?

[WIpatriot]

I do.