Tenth Amendment Center: Afghanistan: Under the Constitution, it isn’t the President’s Decision to Make
As a candidate, Pres. Trump called the war in Afghanistan “futile” and pledged to pull the U.S. out of the quagmire. But in a recent speech, the president announced a plan committed to extending and deepening U.S. military involvement in that country.
Trump said he was now convinced “a hasty withdrawal would create a vacuum for terrorists, including ISIS and Al Qaeda.” He said he planned to commit more troops to the region and to put pressure on Pakistan to destroy terrorist sanctuaries in that country.
“My original instinct was to pull out, and historically I like following my instincts. But all my life, I’ve heard that decisions are much different when you sit behind the desk in the Oval Office.”
We could spend a lot of time dissecting the Trump’s proposed policy and its efficacy. But there exists much bigger problem with the whole thing.
Constitutionally, it isn’t the president’s decision.
His personal opinion on Afghanistan shouldn’t be the final say, and it wouldn’t be if Congress reasserted its proper authority over the issue of war.
The founding generation went out of its way to avoid this kind of unilateral decision-making. It placed the power relating to war and peace in the hands of Congress. The founders wanted to ensure a deliberative body directly accountable to the people made the weighty decisions about war, not a single individual subject to emotional whims. As James Madison wrote in a letter to Thomas Jefferson:
“The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.”
Article I Sec. 8 delegates to Congress the power to “declare war.” Article II Sec. 2 designates the president “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” These two roles stand separate and distinct from one another. Congress makes the decision to enter into war. Only then does the president have the authority to prosecute a war, and only within any limits Congress places on him. The designation of commander in chief does not place any authority to take America into war or initiate any offensive military expeditions in the hands of the president.
George Washington recognized this limitation on his power as he was contemplating an offensive war with the Creek nation in 1793. In a letter to William Moultrie, the president emphasized he would need congressional approval to initiate action.
“The Constitution vests the power of declaring war with Congress, therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”
Madison wrote in detail about war powers in his Letters of Helvidius. He argued that it was dangerous to place the power to initiate war into the same hands of the person responsible for conducting it.
In the general distribution of powers, we find that of declaring war expressly vested in the congress, where every other legislative power is declared to be vested; and without any other qualification than what is common to every other legislative act. The constitutional idea of this power would seem then clearly to be, that it is of a legislative and not an executive nature…
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.
Madison also emphasized that the decision to go to war was an integral part of declaring war and was not an executive function under the Constitution.
“The declaring of war is expressly made a legislative function. The judging of the obligations to make war, is admitted to be included as a legislative function. Whenever, then, a question occurs, whether war shall be declared, or whether public stipulations require it, the question necessarily belongs to the department to which those functions belong–and no other department can be in the execution of its proper functions, if it should undertake to decide such a question.”
Congress has completely abandoned its constitutional responsibility in matters of war and peace. It could easily render the President’s speech on Afghanistan nothing more than an oratory exercise. Instead, we have exactly what the founding generation went to great pains to avoid – a president, in effect, exercising his royal prerogative and single handedly marching more American soldiers off to die on a foreign battlefield.
That’s not his job. At least not if you follow the Constitution as ratified.
It’s easy to blame the president for being power-hunger and usurping authority. But Congress bears just as much culpability. It has abdicated one of its primary constitutional responsibilities. The president exercises unwarranted authority because Congress lets him. It could vote to bring the troops home. In fact, if Congress had done its job and forced past presidents to adhere to the original authorization to use force, American troops would have stopped dying in Afghanistan long ago. Instead, Congress has endorsed an open-ended interpretation of its resolution and allowed a succession of three presidents do whatever they please. They’ve effectively washed their hands of the matter.
Madison warned “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other.” War leads to armies, debts and taxes. He also recognized that “the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people.”
This is exactly what we see today. We’d do well to heed Madison’s words or warning.
“No nation could preserve its freedom in the midst of continual warfare”
Mike Maharrey
August 22, 2017 at 03:43PM
