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.