Hail To The Congress
WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH
John Hart Ely
Princeton University Press, x + 244 pp.
As I write these lines, an American soldier, no doubt the
first of many to come, has been killed while taking part in the
American "peacekeeping" mission in Bosnia. Many in
Congress, as well as most of the Republican candidates for
President, oppose sending our troops to "a far away country
of which we know nothing." Opinion polls unanimously declare
that the American people do not want to go to war in Bosnia.
But in foreign affairs, the rule nowadays seems to be,
"Congress (and the American people) propose; the President
decides." President Clinton has committed our troops to
Bosnia; and patriotic duty, it is alleged, demands that we
support the Commander-in-Chief.
War and Responsibility appeared long before President
Clintons costly effort to make Bosnia safe for democracy, but it
has never been more relevant. John Hart Elys brilliant book
establishes incontrovertibly that it is Congress, not the
President, who has under the Constitution the sole power to
involve U.S. forces in war.
Many areas of constitutional law generate issues of Byzantine
complexity, but this one does not. "The power to declare war
was constitutionally vested in Congress. The debates, and early
practice, establish that this meant that all wars, big or small,
'declared in so many words or not--most werent, even then--had to
be legislatively authorized. Indeed, only one delegate to either
the Philadelphia [Constitutional] convention or any of the state
ratifying conventions, Pierce Butler, is recorded as suggesting
that authority to start a war be vested in the president"
(p. 3, notes omitted). Butlers view was at once repudiated.
For most of our history, presidents scrupulously obeyed the
command of the Constitution. "And when certain presidents
did play a little fast and loose with congressional
prerogatives--Polk at the start of the Mexican War; Wilson and
Roosevelt, respectively, in the events leading up to the First
and Second World Wars--they obscured or covered up the actual
facts, pledging public fealty to the constitutional need for
congressional authorization of military action" (p. 10, note
Ely does not include Lincolns actions at the start of the
Civil War in his list of exceptions, since "for
constitutional purposes a domestic rebellion is quite different
from a foreign war" (p. 150). Though I think this a mistaken
view, this is not the place to argue the point; and even if
Lincoln is added to the list of violators, Elys main contention
But if most presidents on this issue obeyed the constitution,
how did we get where we are today? The key figure in the
transition is that much-overrated haberdasher, Harry Truman.
During the Korean "police action," Truman went out of
his way not to seek Congressional approval for his actions. His
supporters claimed that as Commander-in-Chief it was within his
power to start wars without congressional approval. Ely, not one
to mince words, calls this an "outrageous rationale"
Since Truman, the presidential record has been a sorry one.
With the exception of Dwight Eisenhower, presidents have
continued the path of usurpation pioneered by the man who gave us
Hiroshima. But the blame for the violation of the Constitution
does not lie solely with our recent presidents. Congress has
colluded with them: as Ely sees matters, Congress prefers that
the president assume the burden of committing our troops to
battle. If a war turns out badly, he, not Congress, will be
blamed; if it turns out well, Congress can bask in the presidents
reflected glory. In addition, individual members of Congress aim
primarily to serve the interests of their constituents: they have
little to gain by voting to send troops into combat. Presidential
usurpation of the war power suits many Congressmen quite well.
Should we go along with the new order of things? Ely thinks
not. The original understanding of the war powers clause makes
eminent good sense. The framers of the Constitution wished to
make wars difficult to start. It is easier for a single person to
plunge the country into war, should the decision rest with him
alone, than for a group continually sensitive to popular approval
to do so.
At one juncture Ely could strengthen his case. He states:
"Of course, if he asked, the president would usually receive
rather readily the support of both Congress and the American
people when he decided to have a war. . . . [But] the
constitutional strategy was to require more than one set of keys
to open the Pandoras box of war" (p. 9). Elys argument,
then, is that having Congress declare war will slightly reduce
the probability of war. The chances of war will be reduced, since
both Congress and the president must agree, if a war is to occur;
but they will be reduced only slightly, since Congress will
probably grant the presidents request for a declaration.
The last step of the argument does not follow from Elys
premises. Ely I think has reasoned as follows: the president
wants a certain number of wars. If the decision is solely up to
him, we will have just that number. But Congress, though it will
usually go along with him, will on occasion not do so. Therefore,
the number of wars with Congressional approval will be slightly
less than without it. This argument wrongly assumes that the
requests submitted to Congress will consist of the wars the
president would have started on his own, had he the power to do
so. But this might be false. Perhaps the president, knowing a
request will not be approved, will decline to submit it. More
simply put, if the president realizes his requests may be turned
down, he will be apt to ask for fewer wars than he would have
started on his own.
I hope that readers will forgive me for going on too long
about this point. Ely is a dialectician of immense subtlety, and
the temptation to try to catch him out proved too difficult to
resist. Besides, the point materially strengthens his case.
Defenders of the present order will no doubt dismiss the
appeal to Congress as an anachronism. Do not the imperatives of
modern war demand swift and sudden action? How can one insist on
a leisurely appeal to Congress, when the fate of the world may
require instant response?
As usual, Ely has anticipated the objection:
"Occasionally--though nowhere near as often as enthusiasts
would have us believe--military emergencies can develop faster
than Congress can convene and react. This was also true in the
late eighteenth century--it was probably truer than it is today.
. . . The founders understood this, though, and consequently
reserved to the president authority to respond on his own to
'sudden attacks until there was time for Congress to convene and
confer. In such situations the president could respond militarily
and seek authorization simultaneously" (p. 6, note omitted).
If Ely is right, a difficult problem confronts us. The war
powers clause should be obeyed as originally meant; but Congress
prefers the present situation. What is to be done?
Ely rests his hopes on the federal judiciary. If the president
has committed us to war without the approval of Congress, the
courts should declare the executive action unconstitutional and
remand the matter to Congress for its decision. I am inclined to
think that Ely vastly overestimates the interest of the federal
courts in constitutional government; but here readers must judge
In one instance, Elys zeal to bring in the courts leads him to
a rare misstep. Supporting the plaintiffs in Dellums v. Bush,
a suit brought by several members of Congress to enjoin President
Bush from sending troops to Kuwait without the consent of
Congress, Ely writes: "it was a suit that said 'The
presidents unilateral actions . . . [are] depriving the
fifty-four of us of a right the Constitution guarantees us, that
of voting on wars before the president starts them" (p. 60).
If Congress alone has the right to declare war, then should the
president begin a war without consent of Congress, he has
violated its right. But it does not follow that groups
of members within Congress have separate rights that have been
violated. At any rate, this is an independent step for which
argument is needed. But this is a minor matter.
I fear that I have given a skewed account of Elys book. Much
of it is concerned to analyze, in painstaking detail, whether the
American involvement in Indochina was constitutional. I have
emphasized the underlying thesis, rather than Elys historical
application, since the issue he raises is of vital current
interest. He suggests during his historical account that
presidents who violated the war powers clause should have been
impeached. I hope that readers will not fail to apply the point
to the current occupant of the White House.