We are told that judicial engagement will not lead to dueling natural rights jurists usurping republican government. But what rights do they see?
Mr. Gerry never expected to hear, in a republic, a motion to empower the Executive alone to declare war.
– Constitutional Convention, August 17.
Quaint, that Elbridge Gerry—hung up as he was on the idea that an Executive might need to be empowered to declare war. Two-hundred-and-twenty-seven years nearly to the day after that remark, and one year ago today, the United States commenced military operations against the Islamic State of Iraq and the Levant.
The Obama Administration, which more than two years ago pledged to work with Congress to “refine, and ultimately repeal” the 9/11 Authorization for Use of Military Force, now says a resolution passed before ISIL existed authorizes it to fight this new—this new what?
By any common use of language, this looks like war (OED: “the employment of armed forces against a foreign power”). The particular danger is that it is a slow-motion one.
When the Administration claimed with a straight face that its Libya war, which entailed dropping explosive devices from airplanes emblazoned with the insignia of the U.S. military, did not involve American troops in “hostilities” under the War Powers Resolution, the public could at least notice. How many Americans even know troops are carrying the flag on the ground against ISIL?
The Libya adventure turned calamitous. Sometimes calamities are averted when a multiplicity of voices are heard under conditions conducive to deliberation.
The executive state, by contrast—and, incidentally, nobody familiar with the concept of path dependence seriously thinks the War Powers Resolution, for all the protestations of all the Presidents, seriously restrains any executive—conduces to impulsive decisions. It is also subject to conflicts of interest. Thus Madison:
Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.
This is especially problematic when the same party controls the Presidency and Capitol Hill, as happened for much of the George W. Bush Administration and some of Barack Obama’s. But what of the current inversion, when the Republicans who control Congress do nothing to assert the institution, whose only complaining member, Senator Tim Kaine of Virginia, belongs to the President’s party?
Kaine has called the White House’s claim that the 2001 AUMF covers ISIL “ridiculous,” while denouncing Congress for taking its August recess—which it is not supposed to do while the nation is at war—without acting on this issue.
For those for whom the Constitutional violation is not enough, something prudential is at stake. Wars, especially those of a creeping nature, are sustainable only with sustained popular support—something better tested by Congress, which is closer to the people and tends to serve longer. (Putting it on record can force it to help maintain support too.) Being closer to its constituents, Congress has informed opinions to contribute on the readiness and morale of troops. Its members, too, have expertise on policy, and their many minds ought to be heard.
But in this case, it is the process that ultimately counts. It is harder for Congress than for the President to make a decision. It is supposed to be. In Federalist 70, the same paper that famously defended the need for “secrecy and despatch” in executive councils, Hamilton also specified that these qualities were important after Congress had decided on policy. “In the legislature,” he specified in that essay, “promptitude of decision is oftener an evil than a benefit.”
Hamilton’s colleagues in Philadelphia agreed. On the day Gerry was shocked that some of them seriously wanted to empower the President to wage war, Charles Pinckney, a supporter of doing so, warned that Congress would decide slowly. Good, replied George Mason: “He was for clogging, rather than facilitating war, but for facilitating peace.”
The Republican presidential candidates Thursday night were not asked for their views of the President’s proper place in the Constitutional system. That is a shame. It would be an even greater one if, for a year of what by any sane definition is war, a Republican Congress has failed to assert its prerogatives because rather than feeling its institutional oats, it is licking its party’s presidential chops.