Constitutional Roles Must Be Preserved
When should the United States go to war, and who makes that decision?
The framers thought they settled the issue when they wrote the Constitution. Article 1 gave Congress the sole authority to declare war, and Article 2 made the president commander-in-chief of the Army, Navy and militia of the several states. It was a tidy division intended to prevent one branch from committing the country to war without involving the other.
Times change, and the practice of declaring wars has long been obsolete. Despite the myriad military actions taken by the United States since World War II, 1941 remains the last time Congress declared war. Recent presidents have taken to launching military operations with only symbolic consultation with Congress.
To limit what was seen as presidential usurpation of its authority, Congress passed the War Powers Resolution in 1973, promptly vetoed by Richard Nixon. Every president since has regarded the WPR as an unconstitutional limitation on his powers. With President Obama's assertion that the U.S. participation in the NATO-led military operation against Libya is not subject to congressional approval, the controversy has flared anew.
The War Powers Resolution presents a number of problems, constitutional and otherwise. While the Supreme Court has never directly addressed the WPR, it has ruled unconstitutional the legislative veto which is its linchpin.
The court holds that legislative acts must be passed by both houses and sent to the president to be valid. The WPR allows either House or Senate to veto a military action, a result not contemplated by the framers.
Also unforeseen by the authors of the Constitution was the concept of putting party before national security.
Senate Minority Leader Mitch McConnell (R-Ky.) said of his party's division over the issue of using military force in support of the Libyan rebels, "I think some of these views were probably held by some of my members even in the previous administration, but party loyalty tends to kind of mute them. A lot of our members, not having a Republican in the White House, feel more free to kind of express their reservations."
Most would agree that by participating in this NATO-led action without the approval of Congress, the president has violated the intent of the WPR. He has joined his predecessors in treating the WPR as an illegal intrusion. And Congress seems unable to take a clear stand.
Consider recent congressional actions. On June 24, the House rejected a resolution that would have given the president authority to continue the attacks on Libya - the first time since 1999 that either house has voted against a military operation. That should have been the last word. But later in the day, the same body defeated a bill to stop funding for the military action.
That kind of muddled message makes Congress look ineffectual and gives presidents the impression that they can do pretty much as they please.
The root of the problem is the long-term tendency by presidents of both parties to expand their powers at the expense of the other branch of government, leading to charges of "imperial presidency." Congresses have failed to stop the trend, partly because they are not unhappy when the weight of decision-making is lifted from their shoulders, and partly because they don't have time to govern properly.
Once elected, our representatives spend about half of their working time asking for campaign contributions. That doesn't leave a lot of time for serious consideration of issues of war and peace or much of anything else. Letting the president make those (and many other) decisions is an easy way out.
That's disrupted the separation of powers between the branches and must be addressed. At the same time, Congress needs to heed the reasons the WPR failed and resist the temptation to force a change. A successful solution can only be gained through consensus and compromise. Both sides must make an honest effort to craft a workable system to ensure our national security while preserving the separation of powers.
Some will wonder why a Democrat is willing to criticize the president of his party. We Democrats support our officeholders when they uphold our party's principles. But when they stray we're just as quick to let them know we disapprove. The president swears an oath upon taking office to "preserve, protect, and defend the Constitution." Honoring that oath is not a partisan issue.
At the same time, Republicans in Congress must temper their campaign to bring the president down. Their oft-stated goal of making Mr. Obama a one-term president must not put at risk our national security or needlessly risk the lives of our military members.
The framers were wise to divide war powers when they wrote our Constitution. Leaders of both parties would be wise to restore that balance.
And the president would be wise to treat Congress as an equal partner in such serious decisions.
Jim Heim is chairman of the Moore County Democratic Party. Contact him at firstname.lastname@example.org.
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