Skip to main content

View Diary: War Powers Resolution is not optional (188 comments)

Comment Preferences

  •  This is completely inaccurate (2+ / 0-)
    Recommended by:
    Garrett, blueoasis

    First, nobody has ever believed that Congress's power to declare war is limited to a formal declaration: the Quasi-War with France in the late 18th Century was considered to be an exercise of Congressional warmaking power by all 5 Justices (Bas v. Tingy). A formal declaration creates what the Court has called "perfect war" (war limited only by the laws of war, with the Commander-in-Chief power at its highest point), but Congress may through various legislation create "imperfect war," which leaves the President subject to statutory restraint. In either case, however, the task of creation rests with Congress. This is Separation of Powers 101.

    Second, Congress has extensive war powers, all enumerated, and those same powers by extension are denied to both the President and the states. Among them are the powers to declare war, make rules for captures on land and sea, make rules for using the militia, define and punish piracy (private war), allow states to keep troops and warships, grant letters of marque (allowing private citizens to wage war), etc. The common thread in each of these powers is that they can either give or deny foreign states a cause to go to war with us:

    ~If we declare war on another state, they have cause to declare war on us.

    ~If we start capturing foreign-flagged ships, they have cause to declare war on us.

    ~If we give official sanction for our private citizens to harass foreign ships and forces, or refuse to punish those who do so without sanction, they have cause to declare war on us.

    ~If we allow the states to conduct military operations, they have cause to declare war on us.

    In all of these instances, the power to give the OTHER SIDE cause to go to war rests with Congress.

    Now, given all that, why should we think that the authority to launch ICBMs at another country, use armed drones against them, bombard them from offshore, etc. shouldn't fall under Congress's authority?

    Third, there is an exception built into the Constitution to allow the President to act when Congress does not or cannot approve it: the Guaranty Clause requires that the federal government protect the states from invasion and civil disorder, and the President's obligation to "take care that the laws be faithfully executed" would compel him to command military forces to protect the US. Statutorily, Congress has also given him the authority to use military force when our "territories or possessions," or our military, are attacked overseas. Beyond that, if the President creates a state of war with another country, he acts both unlawfully and unconstitutionally.

    We should preserve the core executive functions of superintendence and operational command of the military, as well as the President’s ability to defend the United States in case of sudden attack, while reasserting the primacy of the legislature in initiating conflicts.  Actions that might provoke conflict with foreign powers, or the exertion of military force against foreign powers not actually at war with the United States, must be subject to congressional deliberation and approval.  Even where Congress is silent, only the most exigent circumstances may justify unilateral presidential belligerence.  No branch but the People’s Branch may rightly write the check that the People themselves will be obliged to cover.

    ‎"Our greatest asset as advocates is a deep cognizance of our own ignorance, plus a willingness to do something about it." -Joseph Mitchell Kaye, 1966.

    by JR on Sun Jun 26, 2011 at 10:04:27 AM PDT

    [ Parent ]

    •  Separation of Powers 101 (0+ / 0-)
      In either case, however, the task of creation rests with Congress

      Oh really? How many presidents in the last 60 years have deferred to Congress in creating war?  Oh right, NONE.

Subscribe or Donate to support Daily Kos.

  • Recommended (126)
  • Community (58)
  • 2016 (50)
  • Environment (38)
  • Elections (36)
  • Media (34)
  • Republicans (32)
  • Hillary Clinton (30)
  • Law (29)
  • Jeb Bush (28)
  • Culture (27)
  • Barack Obama (26)
  • Trans-Pacific Partnership (25)
  • Iraq (25)
  • Civil Rights (24)
  • Climate Change (23)
  • Labor (19)
  • Economy (19)
  • LGBT (16)
  • Health Care (15)
  • Click here for the mobile view of the site