War Powers: Dole had it Right

October 24, 1993|By JOHN HART ELY

So now it's the Republicans who are talking peace and the Democrats who are peddling bogus constitutional law.

Bob Dole, the Senate Republican leader, introduced a bill to prevent President Clinton from committing American forces to Haiti except for reasons of national security. Eventually, the president and Mr. Dole compromised on a non-binding resolution. But before that agreement, the administration's lawyers argued the bill was unconstitutional because it interferes with "the right of the president to make foreign policy."

In fact, the Constitution gives the president no general control over foreign policy: Quite the contrary.

Of necessity one person must negotiate for the country, and the president is the obvious choice, but virtually every substantive power touching on foreign affairs mentioned in the document is vested in Congress, not the executive. And the power to declare war is placed unequivocally in the legislative process.

The constitutional debates and early practice establish that this meant that all armed hostilities engaged in on behalf of the United States -- however big or small, whether "declared" or not (most weren't, even in the late eighteenth century) -- had to be authorized by Congress. The "commander in chief" clause gives the president power to direct the way a war is fought once lawfully begun, but no power to begin one.

Indeed, only one delegate to the Philadelphia convention, Pierce Butler, is recorded as suggesting that authority to start a war be vested in the president. Elbridge Gerry, backed by others, responded that he "never expected to hear in a republic a motion to empower the executive alone to declare war," and Butler quickly disowned his earlier view.

As framer James Wilson summarized the convention's thinking: "The system will not hurry us into war; it is calculated to guard against it. It will not be within the power of a single man, or a single body of men, to involve us in such distress; for the important powerof declaring war is vested in the legislature at large."

There was one reservation -- which was to grant to the president the power, without advance congressional authorization, to "repel sudden attacks."

Some would construe this reservation as applying only in cases of actual enemy attack on U.S. territory. I would construe it more functionally, and thus more broadly, as primarily concerned with the lack of time to secure advance authorization in such situations, and thus as applicable to any sudden and serious threat to the security of the United States. Even then, the president should seek congressional permission simultaneously with his commitment of U.S. troops to hostilities and desist if such permission is not promptly granted.

Senator Dole's proposed legislation did indeed allow the president leeway to commit troops for reasons affecting our national security (which his elaboration defined broadly, including, for example, the need to evacuate Americans from Haiti). While the administration said the senator's bill was unconstitutional, in fact it replicates what the Constitution would require in any event.

Yet, right on cue, the administration's lawyers replied as they have in recent years no matter what the party in power, that the president can start any little old war he likes because the Constitution -- well, the Constitution somehow doesn't count any more. Or its meaning has been flipped upside down. Or something. (The notion that the requirement for group deliberation and consensus before going to war has become less, rather than more, essential as wars have become more threatening seems perverse; at all events it has not been coherently defended.)

The administration reply thus mirrors President George Bush's election campaign boast (before the Texas State Republican Convention where, I suppose, anything goes): "I didn't have to get permission from some old goat in Congress to kick Saddam Hussein out of Kuwait."

Well, no, not "some old goat." Actually he needed the permission of a congressional majority; to his everlasting credit he sought it; and, of course, he got it.

Mr. Clinton, please take your cue from Mr. Bush's deeds, not his reckless campaign hyperbole. We know you didn't serve in the )) Army and thus may be feeling some pressure to act "tough." But this is baloney. Most of your contemporaries, in fact most Americans throughout history, didn't serve in the Army either. A majority of those of us who did serve never saw a day in combat. And those who did -- most assuredly those you are currently threatening to send into the kind of hell that you and I managed to miss -- will forgive you for following the Constitution.

John Hart Ely, former professor of constitutional law at Harvard and dean of Stanford Law School, is author of the just released "War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath." He wrote this commentary for Pacific News Service.

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