The Spectacle Blog

Parting War Powers Thoughts

By on 4.1.11 | 11:09AM

John, I hate to be so disagreeable that I disagree even about the nub of our disagreement but here's what I see as the central question: Did the people who wrote and more importantly ratified the Constitution intend to confer upon the president the power to launch wars and initiate major non-defensive military action without congressional approval? My argument throughout this debate has been that they did not and that the evidence to the contrary is so thin that people who support lots of wars -- Max Boot, for example -- are forced to inflate various skirmishes to make it appear as though their views on presidential war-making have been the historical norm.

That said, the Rivkin/Casey op-ed does at least attempt to make an originalist argument.  The authors seriously grapple with what the Framers were trying to do and don't just cherry-pick favorable quotes or breathe magical meaning into random phrases in the Constitution. The consensus the Founders arrived at was that they wanted to avoid having one man who could take the country to war and easy war-making more generally while stopping short of denying the president the power to defend the country in circumstances where Congress would be too slow to act. That does create some gray areas and times when the president's need for congressional authorization won't be so clear-cut. But the existence of those gray areas doesn't obviate the general principle any more than the existence of some legitimate hard cases means we must therefore support elective abortion on demand.

A case where the U.S. is attacking a country that our own government does not claim had any plans to attack us, in a situation where there was no imminent risk to the American people and where ample time existed to consult Congress, and where the intervention is not consistent with any agreed upon policy that was already in place is not a gray area. It is a textbook example of when congressional authorization is required. Whatever else the Founding Fathers may have meant by "commander-in-chief," they clearly did not intend for the military to be the president's personal army for doing whatever good deeds he chooses to perform throughout the world. The Rubio resolution would at least be a constitutional mechanism for pursuing an unwise policy.

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