Who's In Charge?

PRESIDENTIAL WAR POWER
Louis Fisher
University Press of Kansas, 1995. xvi + 245 pgs.

The conduct of contemporary American foreign policy flies in the face of the Constitution and much of our history. Of this unfortunate circumstance, readers of Louis Fisher's definitive book will have no doubt. Today, President Clinton claims, on his authority as Commander-in-Chief, the power to commit American troops to Bosnia and elsewhere, without the consent of Congress. Like his predecessor George Bush in the Gulf War, he avers that he may act in entire independence of Congress: the president is supreme in foreign policy. Though the cooperation of Congress in foreign adventures may be sought, this is a matter of political convenience rather than legal necessity.

Louis Fisher, probably the foremost expert on the legal questions involved, rejects entirely the self-serving view of our beloved chief magistrate. The Constitution states without ambiguity that Congress, not the President, has the power to declare war. As Fisher makes abundantly clear, the framers had good reason for their language.

Under the British system of government, the power to declare war rested solely with the king; likewise, it was his prerogative to make treaties that could irrevocably bind his subjects. "These models of executive power were well known to the framers. They knew that their forebears in England had committed to the executive the power to go to war. However, when they declared their independence from England, they rested all executive process in the Continental Congress" (p. 2).

In so doing, the American revolutionaries broke with John Locke. As Fisher notes, Locke in the Second Treatise associated the power of war and peace, which he termed the federative power, with the executive. To the framers, this assignment of power threatened tyranny; in so concluding, they were, I suggest, better Lockeans than Locke himself.

The delegates to the Philadelphia convention continued to adhere to the revolutionaries' view of the question. "On numerous occasions the delegates to the constitutional convention emphasized that the power of peace and war associated with monarchy would not be given to the President" (p. 4). Even so ardent a supporter of a strong executive as Alexander Hamilton concurred in the common view.

An objection at once arises to Fisher's contention. No doubt, as he says, the Constitution gives to Congress alone the power to declare war. But is this not a mere formality? The President remains free to send troops into combat as he wishes, through his power as Commander-in-Chief. The clause in question merely restrains him from calling his expeditions "wars" on his own volition. So what?

Our author easily turns this objection aside. Like the Continental Congress, the U.S. Congress's authority extended both "to 'perfect' and 'imperfect' wars to wars that were formally declared by Congress and those that were merely authorized" (p. 2). Fisher emphasizes especially that Congress, not the president, had the constitutional power to authorize private citizens to use armed force against foreign nations, through letters of marque and reprisal.

If thwarted by the text of the Constitution, supporters of presidential power are apt to turn to the Republic's early history. Did not Washington and Jefferson both commit forces to combat without a congressional declaration of war? What of the Indian Wars, the Whiskey Rebellion, and the campaigns against the Barbary pirates?

One of the book's great strengths is its forthright exposure of the myth that the executive in these instances acted independently. In each case, Fisher shows, the president acted with the full consent of Congress.

"Recent studies by the Justice Department and statements made during congressional debate imply that Jefferson took military measures against the Barbary powers without seeking the approval or authority of Congress. In fact, in at least ten statutes, Congress explicitly authorized military action by presidents Jefferson and Madison" (p. 26, footnote number omitted). Those seeking full details of each example must of course consult the book; after Fisher's painstaking survey, the matter admits of no doubt.

In one particular, I venture to suggest that Fisher might have strengthened even further his already overwhelming presentation. He notes Raoul Berger's citation of the Continental Congress's detailed instructions to George Washington as evidence of the narrow scope accorded the commander-in-chief. But he finds fault with Berger's analysis. The Congress often made "extensive delegations" of authority to Washington (p. 11). Further, the limits on an officer subordinate to Congress need not apply to the president, who heads a coequal branch of the government.

Fisher's objections do not speak directly to Berger's argument. True, the Congress delegated power to Washington: but it was theirs to delegate, as Berger's citation of the instructions to Washington shows. And the issue in dispute is not whether the president has more power than a general of the revolutionary army; rather, the question is what power derives from his designation as commander-in-chief. Here, Berger's resort to contemporary usage of the phrase is entirely on point.

If, though, the case for Congressional authority over war is as strong as Fisher alleges, how did we get where we are today? During the first half of the nineteenth century, presidents usually adhered to constitutional requirements, although James Polk behaved in highly dubious fashion during the Mexican War. Of course matters were different with Abraham Lincoln, that fount of all things unconstitutional. "In April 1861, with Congress in recess, he [Lincoln] issued proclamations calling forth the state militia, suspending the writ of habeas corpus, and placing a blockade on the rebellious states" (p. 38). Yet even Lincoln acknowledged that he had acted ultra vires and sought subsequent Congressional approval to make good his illegalities.

If, much against our instincts, Lincoln cannot be saddled with the full blame for presidential usurpation of the war power, who can? Fisher tells a long and involved story, but two presidents especially merit a place in the rogue's gallery.

As Fisher notes, Woodrow Wilson's violation of the Constitution proceeded from long meditated plans. Although the Constitution provides for treaties to be made by the president with the "advice and consent of the Senate," Wilson in two books openly expressed his contempt for this limit to executive power. By his power to take unilateral initiatives, the president could create a situation in which Congress would have no alternative but to back the president. "The initiative in foreign affairs, which the President possesses without any restriction whatever, is virtually the power to control them absolutely" (p. 72, quoting Wilson, Constitutional Government in the United States).

When elected president, Wilson adhered faithfully to his designs; but as the battle over the Treaty of Versailles showed all too well, he could not bludgeon Congress into acknowledging the dominance in foreign affairs he claimed. With Harry Truman, who shared Wilson's bloated conception of executive power, matters proved far different.

During the Korean War, Congress was more than willing to give Truman full support for his military moves in Asia. But he disdained the legislative branch's approval. In his view, he did not require its consent to send American troops into battle. Congress might accede if it wished; the question was really of no moment. "President Truman did not seek the approval of members of Congress for his military actions in Korea. As [Secretary of State] Acheson suggested, Truman might only wish to 'tell them what had been decided'" (p. 86).

I need not fear spoiling the reader's surprise if I reveal that the modern Supreme Court has not stood foremost as a champion of the original understanding of the Constitution. Oddly enough, though, a key decision upholding executive supremacy in foreign affairs came from George Sutherland, normally a highly conservative justice. Sutherland, one of the Supreme Court's "Four Horsemen of Reaction," did not hesitate to strike down New Deal domestic legislation as unconstitutional. Yet in foreign affairs he saw matters in an entirely different light.

In the Curtiss-Wright case (1936), Sutherland held that the president's power in foreign affairs existed in entire independence from the Constitution. The power to conduct foreign relations is an "inherent attribute of sovereignty." As such, it passed upon independence directly from the British Crown to the colonies collectively. Somehow, though Sutherland did not make clear in exactly what fashion, the power migrated to the Chief Executive.

Fisher crisply and clearly dissects Sutherland's opinion, and fortunately in recent years the Court has retreated from its extreme language. Our author sees in this a sign of hope. Indeed, he is generally an optimist, believing that if Congress resolutely asserts its constitutional prerogative, the president will be forced to comply with its wishes. He supports his opinion through a detailed account of the War Powers Resolution of 1973.

One may hope that he is right; but even if Congress does assert its authority, the battle is liable to be difficult. Recent presidents, not least among them Bush and Clinton, have done their best to thwart Congressional attempts to rein in the plenary powers they claim for themselves.

Fisher's carefully presented book requires us to answer an underlying question. Granted that the author's constitutional argument is correct, why does this matter for us now? Fisher does not address the issue in elaborate detail, but the response is sufficiently obvious. Congressional authority over war provides an indispensable means to curb a president intent on foreign adventures.

Though Fisher well states the essentials of the case, his book can here usefully be supplemented with the excellent work of John Hart Ely, War and Responsibility, which was reviewed in these pages on an earlier occasion (Mises Review, Spring 1996, pp. 10 13). More generally, the two books are near perfect complements: Ely is a master of argumentative subtlety, while Fisher excels in historical research.

But what if, against all expectation, the president proves less bellicose than Congress? Here a non-interventionist need fear nothing, since matters are likely to work out as he desires. As commander-in-chief, the president does possess some real powers, and one of them may be used to block an overly aggressive Congress.

Fisher makes this clear through an amusing anecdote about Grover Cleveland. When members of Congress pressed for war with Spain, "Cleveland responded bluntly. 'There will be no war with Spain over Cuba while I am President.' A member of Congress protested that the Constitution gave Congress the right to declare war, but Cleveland countered by saying that the Constitution also made him Commander-in-Chief and 'I will not mobilize the army'" (p. 42). This kind of presidential defiance we can tolerate.