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The Consequences of Allowing Presidents to Ignore the Declare War Clause

While most criticisms of nonoriginalism focus on the creation of constitutional rights that do not exist in the document, the failure to follow the original meaning concerning the separation of powers should receive more attention.  In particular, the failure of the courts and, in areas where the courts do not typically decide matters, the political branches to enforce the original meaning has had serious harm.

Consider the requirement under the Constitution’s original meaning that Congress authorize American wars (except where the U.S. is attacked).  There is a strong case to be made that Constitution’s original meaning imposes this rule.  Despite claims of presidents who seek to engage in hostilities without congressional authorization, the Constitution’s original meaning would work well.  By contrast, under our existing “constitutional practice,” presidents are usually able to engage in war without congressional authorization, as President Obama did in Libya.  And this not only allows presidents to fight wars that the country is not behind, but also undermines the entire system of responsibility that the Constitution establishes in this area. 

In the typical situation, the President believes that he does not need an authorization of force to take action, but seeks such authority anyway, presumably to increase the political support for his actions.  In this situation, the Congress has little reason to provide such authorization.  It would require the members to take political responsibility for an action that they cannot control.

Under the Constitution’s original meaning, things work better.  The President could not act on his own and his attempt to do so would be an impeachable offense that would be widely rejected.  But that would not mean that the Congress would be unwilling, as it often is now, to provide authorization.  First, the Congress would feel political pressure to act, because without its authorization, no actions could be taken.  Second, because the Congress could impose binding limits, it could set the parameters of the action and therefore take responsibility for a decision it made.

This is the way that the constitutional system is supposed to operate.  But because presidents of both parties have asserted and exercised the power to take offensive military actions, it is undermined.  The Congress becomes infantilized, refusing to take responsibility because it has no ultimate power.  The President enhances his own power, because he rightly claims that the Congress is unwilling to act, and the President becomes the ultimate decider.  This is no improvement on the decisions of the Framers.  It is a corruption and a serious infirmity.

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