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Jewish World Review August 13, 2002 / 5 Elul, 5762

Doug Bandow

Doug Bandow
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Declare war before going to war | After months of presidential threats to attack Iraq, Congress finally held hearings on the prospect of war. Senate Foreign Relations Committee Chairman Joseph Biden (D-Del.) predicts war, but hearings are not nearly enough. Congress must approve any presidential proposal to go to war.

Article 1, Sec. 8 (11) of the Constitution states: "Congress shall have the power ... to declare war." The president is commander-in-chief, but he must fulfill his responsibilities subject to the control of Congress.

After Sept. 11, Congress authorized the president to retaliate against any "nations, organization, or persons" he determined to be involved in the atrocity. However, Iraq was not involved in the September attacks. Former U.N. arms inspector Richard Butler says there is no evidence that Baghdad is arming al-Qaeda or other terrorist groups.

So the administration is emphasizing Iraq's refusal to accept United Nations inspections to deter development of weapons of mass destruction. Nonproliferation is a worthy concern, but the president has no authority to act for this reason. For that, he must go to Congress.

Today presidents prefer to make the decision for war themselves. In effect, they claim power comparable to the head of the Soviet communist party. As then-Defense Secretary Caspar Weinberger observed: Now who among the Soviets voted that they should invade Afghanistan? Maybe one, maybe five men in the Kremlin. Who has the ability to change that and bring them home? Maybe one, maybe five men in the Kremlin. Nobody else. And that is, I think, the height of immorality.

Now who among Americans has voted to attack, say, Iraq? Should one man in the White House make that decision, it would also be the height of immorality.

One of the Founding Fathers' criticisms of the British king was that he could unilaterally drag his nation into war. The Framers consciously rejected such a system. Still, some Americans opposed the proposed Constitution because they feared that it gave to the chief executive similar monarchical authority.

Don't worry, explained that great friend of executive power Alexander Hamilton. The president's power was "in substance much inferior to it. 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."

The Founders carefully drafted the Constitution because they feared that presidents would abuse their power as they do now. Explained James Madison in 1793, it is necessary to adhere to the "fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature."

Constitutional convention delegates did change Congress' power from "make" to "declare" war, but they intended to give the president authority to respond to a sudden attack, not initiate a conflict. The president "is not safely to be entrusted with" the power to decide on war, said George Mason of Virginia. James Wilson observed that, "It will not be in the power of a single man, or a single body of men, to involve us in such distress."

Of course, there always will be potential gray areas in today's complicated world. But most cases, such as attacking Iraq, are clear. The president must go to Congress.

Are there any legitimate exceptions to the congressional war power? Some analysts would have Americans believe that, in the modern world, it is simply impractical to involve legislators in foreign policy-making.

No one thinks that 535 legislators should manage the ensuing war -- that's why the Constitution names the president commander-in-chief. But Congress must decide whether or not the president will have a war to run.

Some would expand the president's power to use the military for "defensive" purposes. Defensive means defensive, however. Constitutional convention delegate Roger Sherman of Connecticut explained that "the executive should be able to repel and not to commence war."

In an uncertain world, presidents also like to argue that they must be able to respond to unpredictable events. But there is almost always time to go to Congress, as even after the Sept. 11 attack.

There certainly is no hurry to make war on Iraq, especially since the administration itself says that it will not act before the election. And Congress could avoid tipping off Baghdad as to the timing of any strike by debating a conditional declaration, which would authorize the president to act under specified circumstances.

Today the favorite presidential excuse for claiming the right to unilaterally initiate war is: Everyone else does it. But the Constitution is no less binding on President Bush because other presidents have violated it.

Whatever the target and whatever the reason, American presidents should not risk the lives of young Americans in foreign adventures without Congressional consent. The decision of war and peace is far too important to leave to one man, however honest, smart or popular.

JWR contributor Doug Bandow is a senior fellow at the Cato Institute. Comment by clicking here.


08/06/02: Hostile allies
07/30/02: Protecting or persecuting citizens?
07/23/02: Shifting the risk to Uncle Sam
07/16/02: Fighting the patent wars
07/09/02: Getting that quota feeling
07/02/02: Teetering on the Democratic edge
06/25/02: Judicial litmus tests
06/18/02: Killer teeth?
06/11/02: Europeans defending whom?
05/24/02: Threatening pharmaceutical innovation
05/14/02: The war crimes fantasy
05/07/02: Paying a high price for befriending Saudi princes
04/30/02: The price of postal monopoly
04/23/02: The war on charity
04/16/02: The forgotten human right
03/27/02: Cuba's struggle to be free
03/20/02: How to defeat Cuban communism
03/12/02: Junk science, redux
03/06/02: Axis of hubris
02/27/02: Washington-style campaign reform: incumbent protection
02/20/02: The grand Enron morality play
02/12/02: Rebuilding what?
02/05/02: Succumbing to the terrorist temptation
01/29/02: Democrats for what?
01/22/02: The Iraqi question
01/14/02: Profiling frequent flyers
01/08/02: Trade, not aid
01/02/02: Treason by any other name
12/26/01: Preserving freedom in an unfree world
12/17/01: Dealing with terrorism's aftermath
12/10/01: Emerging friendships?
12/04/01: Uncle Sam: Insurer of last resort
11/28/01: Expanding the circle of trade
11/20/01: Free to be stupid
11/13/01: The meaning of compassion
11/07/01: Patriotic scoundrels
10/30/01: The coming postal raid
10/16/01: First, do no harm
10/12/01: Good news from a suffering land
10/04/01: Defending whom?
09/25/01: The wrong solution to the wrong problem
09/21/01: The price of terrorism
08/28/01: Uncle Sam's retirement scam
08/21/01: Canberra's quaint naivete
08/14/01: Uncle Sam's false fuel economy
08/08/01: The Clinton administration in drag
07/31/01: The high cost of government
07/24/01: Kill the campaign reform illusion
07/17/01: Do as I say, not as I do
07/11/01: Lawyers at play
07/05/01: Western blundering, Macedonian disaster
06/26/01: How best to honor Bill Clinton?
06/19/01: A maturing Europe?
06/15/01: Tell Beijing to mind its own business
06/06/01: Ukraine's boiling cauldron
05/31/01: Protecting privacy from Uncle Sam
05/22/01: America's Balkan quagmire
05/09/01: The Taiwanese flash point
05/01/01: Globalization serves the world's poor
04/24/01: Who's cheating whom?
04/10/01: The NCAA scam
04/03/01: Balkan stupidities
03/27/01: McCain doesn't want a 'risk for our country'
03/20/01: Dubious Korean alliances
03/06/01: Coercive patriotism
02/27/01: Bombing without end
02/20/01: A dose of misplaced outrage
02/13/01: Psst: Tax cuts for taxpayers. Pass-it-on
02/06/01: Bridging the unbridgeable gap
01/23/01: Left-wing demagoguery
01/16/01: The drug war problem
01/10/01: Politics and trade
01/03/01: Hope for liberty?
12/27/00: The debris of war
12/19/00: What's the rule of law for?
12/15/00: Ending silicone breast implant saga
12/05/00: Election may yield victor, but there are no winners
11/21/00: A Bush presidential mandate?
11/07/00: Exprienced Gore? Yeah, right
11/01/00: Interventionist follies
10/17/00: America's brightening prospects in Ukraine
10/11/00: GOP budget scandals
10/03/00: How a pharmaceutical 'crisis' was created
09/27/00: Clinton's empathy has helped nobody
09/13/00: AlGore's risky budget policies
09/05/00: Military readiness and Korean commitments
08/29/00: Let sleeping hypocrites lie
08/21/00: Targeting a journalistic pariah
08/15/00: European garrison for Kosovo?
08/08/00: Journalistic cleansing at the Boston Globe
08/04/00: Junk science on trial
06/22/00: Eternal vigilance is the price of liberty
06/15/00: The end of U.N. peacekeeping
06/07/00: The Clinton regulatory miasma
06/01/00: Administration stupidity, congressional cowardice
05/25/00: The silence of the international community
05/18/00: Protecting the next generation

05/11/00: Freer trade with China will advance human rights

05/04/00: How not to save the Constitution

04/28/00: American tripwire in Korea long ago disappeared: Why are we still involved?

04/18/00: Clinton administration believes the IRS is too gentle, wants more auditors

© 2002, Copley News Service