[Peace-discuss] tom woods on presidential war powers

[E. Wayne Johnson]

There was some "Brandon Blackburn-Dwyer" from the USA on CCTV9's "Dialogue"
program who said that Obama's actions in Libya were
constitutional because they are legal under the War Powers Act.
Blackburn-Dwyer is an Obamite not a neocon, but indeed the
war agenda of Obama and that of the neocons is harmonious.

There is something intrinsic in some people that causes them to want to
submit to and worship a king. The constitution was established to 
prevent such.
Constititution or no, Obama is demonstrating that he is indeed supreme 
king, emperor, pharoah, and dictator.

Possession does indeed comprise 9/10ths of the law,
and a well-established precedent is difficult to overturn
regardless of its veracity or its value.

Tacit consent to wrong furthers the dangerous Precedent.

Thomas Woods makes a solid argument against the War Powers.


  The Phony Arguments for Presidential War Powers

by Thomas E. Woods, Jr.

A U.S. president has attacked another country, so it’s time for the scam 
artists to pull out their fake constitutional arguments in support of 
our dear leader. Not all of them are doing so, to be sure – in fact, 
it’s been rather a hoot to hear supporters of the Iraq war suddenly 
caterwauling about the Constitution’s restraints on the power of the 
president to initiate hostilities abroad. But I’m told that radio host 
Mark Levin criticized Ron Paul on his program the other day on the 
precise grounds that the congressman didn’t know what he was talking 
about when it came to war powers and the Constitution.

That means it’s time to lay out all the common claims, both 
constitutional and historical, advanced on behalf of presidential war 
powers, and refute them one by one.

*“The president has the power to initiate hostilities without consulting 
Congress.”*

Ever since the Korean War, Article II, Section 2 of the Constitution – 
which refers to the president as the “Commander in Chief of the Army and 
Navy of the United States” – has been interpreted this way.

But what the framers actually meant by that clause was that once war has 
been declared, it was the President’s responsibility as 
commander-in-chief to direct the war. Alexander Hamilton spoke in such 
terms when he said that the president, although lacking the power to 
declare war, would have “the direction of war when authorized or begun.” 
The president acting alone was authorized only to repel sudden attacks 
(hence the decision to withhold from him only the power to “declare” 
war, not to “make” war, which was thought to be a necessary emergency 
power in case of foreign attack).

The Framers assigned to Congress what David Gray Adler has called 
“senior status in a partnership with the president for the purpose of 
conducting foreign policy.” Congress possesses the power “to regulate 
Commerce with foreign Nations,” “to raise and support Armies,” to “grant 
Letters of Marque and Reprisal,” to “provide for the common Defense,” 
and even “to declare War.” Congress shares with the president the power 
to make treaties and to appoint ambassadors. As for the president 
himself, he is assigned only two powers relating to foreign affairs: he 
is commander-in-chief of the armed forces, and he has the power to 
receive ambassadors.

At the Constitutional Convention, the delegates expressly disclaimed any 
intention to model the American executive exactly after the British 
monarchy. James Wilson, for example, remarked that the powers of the 
British king did not constitute “a proper guide in defining the 
executive powers. Some of these prerogatives were of a Legislative 
nature. Among others that of war & peace.” Edmund Randolph likewise 
contended that the delegates had “no motive to be governed by the 
British Government as our prototype.”

To repose such foreign-policy authority in the legislative rather than 
the executive branch of government was a deliberate and dramatic break 
with the British model of government with which they were most familiar, 
as well as with that of other nations, where the executive branch (in 
effect, the monarch) possessed all such rights, including the exclusive 
right to declare war. The Framers of the Constitution believed that 
history testified to the executive’s penchant for war. As James Madison 
wrote to Thomas Jefferson, “The constitution supposes, what the History 
of all Governments demonstrates, that the Executive is the branch of 
power most interested in war, and most prone to it. It has accordingly 
with studied care vested the question of war in the Legislature.” 
Madison even proposed excluding the president from the negotiation of 
peace treaties, on the grounds that he might obstruct a settlement out 
of a desire to derive “power and importance from a state of war.”

At the Constitutional Convention, Pierce Butler “was for vesting the 
power in the President, who will have all the requisite qualities, and 
will not make war but when the nation will support it.” Butler’s motion 
did not receive so much as a second.

James Wilson assured the Pennsylvania Ratifying Convention, “This system 
will not hurry us into war; it is calculated to guard against it. It 
will not be in the power of a single man, or a single body of men, to 
involve us in such distress; for the important power of declaring war is 
vested in the legislature at large: this declaration must be made with 
the concurrence of the House of Representatives: from this circumstance 
we may draw a certain conclusion that nothing but our interest can draw 
us into war.”

In Federalist #69, Alexander Hamilton explained that the president’s 
authority “would be nominally the same with that of the King of Great 
Britain, but in substance much inferior to it. It would amount to 
nothing more than the supreme command and direction of the military and 
naval forces, as first general and admiral of the confederacy; while 
that of the British king extends to the declaring of war, and to the 
raising and regulating of fleets and armies; all which by the 
constitution under consideration would appertain to the Legislature.”

According to John Bassett Moore, the great authority on international 
law who (among other credentials) occupied the first professorship of 
international law at Columbia University, “There can hardly be room for 
doubt that the framers of the constitution, when they vested in Congress 
the power to declare war, never imagined that they were leaving it to 
the executive to use the military and naval forces of the United States 
all over the world for the purpose of actually coercing other nations, 
occupying their territory, and killing their soldiers and citizens, all 
according to his own notions of the fitness of things, as long as he 
refrained from calling his action war or persisted in calling it peace.”

In conformity with this understanding, George Washington’s operations on 
his own authority against the Indians were confined to defensive 
measures, conscious as he was that the approval of Congress would be 
necessary for anything further. “The Constitution vests the power of 
declaring war with Congress,” he said, “therefore no offensive 
expedition of importance can be undertaken until after they have 
deliberated upon the subject, and authorized such a measure.”

* *

*“John Adams made war on **France** without consulting Congress.”*

Supporters of a broad executive war power have sometimes appealed to the 
Quasi War with France, in the closing years of the eighteenth century, 
as an example of unilateral warmaking on the part of the president. 
Francis Wormuth, an authority on war powers and the Constitution, 
describes that contention as “altogether false.” John Adams “took 
absolutely no independent action. Congress passed a series of acts that 
amounted, so the Supreme Court said, to a declaration of imperfect war; 
and Adams complied with these statutes.” (Wormuth’s reference to the 
Supreme Court recalls a decision rendered in the wake of the Quasi War, 
in which the Court ruled that Congress could either declare war or 
approve hostilities by means of statutes that authorized an undeclared 
war. The Quasi War was an example of the latter case.)

An incident that occurred during the Quasi War throws further light on 
the true extent of presidential war powers. Congress authorized the 
president to seize vessels sailing to French ports. But President Adams, 
acting on his own authority and without the sanction of Congress, 
instructed American ships to capture vessels sailing either to or from 
French ports. Captain George Little, acting under the authority of 
Adams’ order, seized a Danish ship sailing from a French port. When 
Little was sued for damages, the case made its way to the Supreme Court. 
Chief Justice John Marshall ruled that Captain Little could indeed be 
sued for damages in the case. “In short,” writes war powers expert Louis 
Fisher in summary, “congressional policy announced in a statute 
necessarily prevails over inconsistent presidential orders and military 
actions. Presidential orders, even those issued as Commander in Chief, 
are subject to restrictions imposed by Congress.”

* *

*“**Jefferson** acted unilaterally against the **Barbary** pirates.”*

Another incident frequently cited on behalf of a general presidential 
power to deploy American forces and commence hostilities involves 
Jefferson’s policy toward the Barbary states, which demanded protection 
money from governments whose ships sailed the Mediterranean. Immediately 
prior to Jefferson’s inauguration in 1801, Congress passed naval 
legislation that, among other things, provided for six frigates that 
“shall be officered and manned as the President of the United States may 
direct.” It was to this instruction and authority that Jefferson 
appealed when he ordered American ships to the Mediterranean. In the 
event of a declaration of war on the United States by the Barbary 
powers, these ships were to “protect our commerce & chastise their 
insolence – by sinking, burning or destroying their ships & Vessels 
wherever you shall find them.”

In late 1801, the pasha of Tripoli did declare war on the U.S. Jefferson 
sent a small force to the area to protect American ships and citizens 
against potential aggression, but insisted that he was “unauthorized by 
the Constitution, without the sanction of Congress, to go beyond the 
line of defense”; Congress alone could authorize “measures of offense 
also.” Thus Jefferson told Congress: “I communicate [to you] all 
material information on this subject, that in the exercise of this 
important function confided by the Constitution to the Legislature 
exclusively their judgment may form itself on a knowledge and 
consideration of every circumstance of weight.”

Jefferson consistently deferred to Congress in his dealings with the 
Barbary pirates. “Recent studies by the Justice Department and 
statements made during congressional debate,” Louis Fisher writes, 
“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. Congress passed legislation in 1802 to 
authorize the President to equip armed vessels to protect commerce and 
seamen in the Atlantic, the Mediterranean, and adjoining seas. The 
statute authorized American ships to seize vessels belonging to the Bey 
of Tripoli, with the captured property distributed to those who brought 
the vessels into port. Additional legislation in 1804 gave explicit 
support for ‘warlike operations against the regency of Tripoli, or any 
other of the Barbary powers.’”

Consider also Jefferson’s statement to Congress in late 1805 regarding a 
boundary dispute with Spain over Louisiana and Florida. According to 
Jefferson, Spain appeared to have an “intention to advance on our 
possessions until they shall be repressed by an opposing force. 
Considering that Congress alone is constitutionally invested with the 
power of changing our condition from peace to war, I have thought it my 
duty to await their authority for using force…. But the course to be 
pursued will require the command of means which it belongs to Congress 
exclusively to yield or to deny. To them I communicate every fact 
material for their information and the documents necessary to enable 
them to judge for themselves. To their wisdom, then, I look for the 
course I am to pursue, and will pursue with sincere zeal that which they 
shall approve.”

*“Presidents have sent men into battle hundreds of times without getting 
congressional authorization.”*

* *

This argument, like so much propaganda, originated with the U.S. 
government itself. At the time of the Korean War, a number of 
congressmen contended that “history will show that on more than 100 
occasions in the life of this Republic the President as Commander in 
Chief has ordered the fleet or the troops to do certain things which 
involved the risk of war” without the consent of Congress. In 1966, in 
defense of the Vietnam War, the State Department adopted a similar line: 
“Since the Constitution was adopted there have been at least 125 
instances in which the President has ordered the armed forces to take 
action or maintain positions abroad without obtaining prior 
congressional authorization, starting with the ‘undeclared war’ with 
France (1798-1800).”

We have already seen that the war with France in no way lends support to 
those who favor broad presidential war powers. As for the rest, the 
great presidential scholar Edward S. Corwin pointed out that this 
lengthy list of alleged precedents consisted mainly of “fights with 
pirates, landings of small naval contingents on barbarous or 
semi-barbarous coasts, the dispatch of small bodies of troops to chase 
bandits or cattle rustlers across the Mexican border, and the like.”

To support their position, therefore, the neoconservatives and their 
left-liberal clones /are counting chases of cattle rustlers as examples 
of presidential warmaking/, and as precedents for sending millions of 
Americans into war with foreign governments on the other side of the globe.

* *

*“The War Powers Resolution of 1973 gives the president the power to 
commit troops anywhere he likes for 90 days.”*

Which is why it’s manifestly unconstitutional. I’ve written on this 
elsewhere <http://www.lewrockwell.com/woods/woods54.html>.

* *

*“If the United Nations authorizes military action, the president does 
not need to consult Congress.”*

* *

The UN Charter itself notes that the Security Council’s commitment of 
member nations’ troops must be authorized by these nations’ “respective 
constitutional processes.” The Congressional Research Service’s Louis 
Fisher explains further: “Assured by Truman that he understood and 
respected the war prerogatives of Congress, the Senate ratified the UN 
Charter. Article 43 provided that all UN members shall make available to 
the Security Council, in accordance with special agreements, armed 
forces and other assistance. Each nation would ratify those agreements 
‘in accordance with their respective constitutional processes.’ It then 
became the obligation of Congress to pass legislation to define the 
constitutional processes of the United States. Section 6 of the UN 
Participation Act of 1945 states with singular clarity that the special 
agreements ‘shall be subject to the approval of the Congress by 
appropriate Act or joint resolution.’ The procedure was specific and 
clear. Both branches knew what the Constitution required. The President 
would first have to obtain the approval of Congress.”

The UN Participation Act’s provisions regarding military action and the 
president have often been misread, thanks to a qualification in Article 
6. But that qualification simply means that once the president has 
obtained congressional approval for a special agreement with the UN 
Security Council to make American forces available to the UN, he does 
not need congressional approval a second time to implement that agreement.

Fisher elaborates on the UN Participation Act of 1945 here 
<http://www.constitutionproject.org/pdf/424.pdf>. (See especially pp. 
1249-1250.)

* *

*/The remaining claims, somewhat more technical in nature, have been put 
forth most memorably by John Yoo, former deputy assistant attorney 
general under George W. Bush. These are paraphrases of Yoo’s positions. 
They are replied to in much more detail in /Who Killed the Constitution? 
<http://www.amazon.com/gp/product/0307405761?ie=UTF8&tag=thomacom-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0307405761>/ 
by the present author and Kevin Gutzman./*

* *

*“In the eighteenth century, a ‘declaration of war’ was a merely 
rhetorical and communicative act – a ‘courtesy to the enemy’ – and did 
not involve the initiation or authorization of hostilities. Thus in 
granting Congress the power to declare war, the Constitution had merely 
given it the power to communicate to an enemy people (as well as to 
neutrals and to the country’s own citizens that a state of war existed; 
the president, on the other hand, retained the power actually to bring 
the United States into war by commencing military action.”*

This is partly correct. In the eighteenth century a “declaration of war” 
could indeed have this lesser meaning. But a review of 
eighteenth-century usage reveals that to “declare war” could also mean 
actually to begin a war.

Consider also that as the Constitution was being debated, Federalists 
sought to reassure skeptical anti-Federalists that the president’s 
powers were not so expansive after all. For one thing, the Federalists 
said, the president lacked the power to declare war. In order for their 
argument to carry any weight, “declare war” must have been taken to mean 
the power to initiate hostilities – for no anti-Federalist would have 
been appeased by “Sure, the president can take the country to war on his 
own initiative, but the power to draft declaratory statements will rest 
with Congress!”

If Yoo’s argument were correct, we should expect to see presidents in 
the years immediately following ratification of the Constitution taking 
bold military action without concerning themselves much about the will 
of Congress, which according to Yoo had only the power to issue 
declaratory statements. But as we have seen in the examples of 
Washington, Adams, and Jefferson, the opposite was in fact the case; 
these early presidents were careful to defer to Congress.

*“Congress may have some power over major wars, but lesser uses of force 
are reserved to the president alone.”*

The evidence from the early republic contradicts this claim. Supreme 
Court justice Samuel Chase summed up the reigning doctrine in 1800: 
“Congress is empowered to declare a general war, or congress may wage a 
limited war; limited in place, in objects and in time.” The 1804 case of 
/Little v. Barreme/ involved a ship commander who, during the Quasi War 
with France in the late 1790s, had seized a ship that he thought was 
illegally trading with France. The commander was following a directive 
from President John Adams in seizing this ship, which had been coming 
from France. But Congress had authorized President Adams only to seize 
ships going /to/ France; in short, the president’s directive ventured 
beyond what congress had called for in this limited war. In a unanimous 
decision, the Court declared that the commander was liable for damages 
even though he had acted in accordance with a presidential directive. No 
such presidential directive could override the authority of Congress, 
said the Court.

*“The Vesting Clause grants the president a wide array of unspecified 
powers pertaining to foreign affairs.**”*

You won’t hear this argument in many casual discussions of presidential 
war powers, but since Yoo cited it in a draft memorandum he wrote for 
the Department of Defense in early 2002, it’s worth a brief reply. 
(Again, a lengthier reply can be found in /Who Killed the Constitution?/ 
<http://www.amazon.com/gp/product/0307405761?ie=UTF8&tag=thomacom-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0307405761>)

The Vesting Clause can be found in Article II, Section 1 of the 
Constitution; “The executive Power shall be vested in a President of the 
United States of America.” According to this view, the Vesting Clause 
bestows on the president a host of unspecified powers in addition to the 
specific ones listed in the rest of Article II. The Framers of the 
Constitution, they say, thereby showed that they wanted the president to 
exercise all powers that would have been recognized in the eighteenth 
century as being fundamentally executive in nature, even if those powers 
are not actually mentioned in the Constitution. Congress, on the other 
hand, is assigned no such open-ended authority but is instead limited by 
the Constitution to all “legislative Powers herein granted,” a reference 
to the specific list of powers that then follows. The conclusion: the 
president may rightly exercise all powers relating to foreign affairs 
(since such powers are by their nature executive) except those 
specifically assigned to Congress.

Unfortunately for Yoo, he will not find any support for his views on 
executive power and the Vesting Clause in the state constitutions drawn 
up after 1776, in the /Federalist/, or in the state ratification 
debates. Nowhere in the state constitutions do we see any indication of 
an intent to vest the executive with an array of unspecified powers 
beyond those that were expressly mentioned. In Federalist #69, Alexander 
Hamilton argued that the American president would be much weaker than 
the British king, and cited the specific list of powers the Constitution 
grants the president. That argument would have been absurd and dishonest 
if the Vesting Clause had given the president an additional reservoir of 
powers beyond those Hamilton catalogued. Curtis Bradley and Martin 
Flaherty, writing in the /Michigan Law Review/, conclude that “in the 
thousands of pages recording these debates the argument that the Vesting 
Clause grants the president a general foreign affairs power simply does 
not appear.”

In short, there is no constitutional support for the presidential war 
powers claimed by mainstream left and right. That’s why they usually 
wind up claiming that the congressional power to declare war is 
“obsolete.” They can’t deny its existence, so they deny the document in 
which it is contained. And that means they lose the argument.