Executive War Powers Have Strict Constitutional Limits

Podcast: Play in new window | Download (Duration: 8:33 — 7.8MB)

United States Secretary of Defense, Leon Panetta caused quite a stir last week (March, 2012) when he took the position that no approval from Congress is necessary to take offensive military action against Syria. He indicated the administration would make international approval a priority, with consultation with Congress a secondary consideration.

Every day, it feels more and more like we live in what comes very close to being an elected dictatorship.

Sen. Jeff Sessions (R-Ala.) asked the Secretary specifically, “Do you think you can act without Congress to initiate a no-fly zone in Syria?”

He was visibly quite taken aback when Panetta responded.

“Our goal would be to seek international permission, and we would come to the Congress and inform you and determine how best to approach this — whether or not we would want to get permission from the Congress…I think those are issues we would have to discuss as we decide what to do here.”

The defense secretary made it clear to the senator that the primary objective would be to first secure international approval for military action, and then tell the Congress what they might decide to do, after which the administration would consider asking for congressional approval.

After Sessions expressed  his complete dismay at the secretary’s clear intent to exclude Congress, which possess sole constitutional authority to declare war, from the decision making process, Panetta defended his position.

“I’ve also served with Republican presidents and Democratic presidents who always reserved the right to defend this country if necessary.”

Secretary Panetta correctly asserts that every president has rightfully reserved the authority to defend this country, if necessary. But I would also argue that a no-fly zone, or any other offensive military action in Syria, is far from necessary to defend the United States.

As might be expected, there was no shortage of criticism from Republicans, much of it aimed at the administration for  seeking international permission rather than the president usurping Congress’ constitutionally delegated war powers. I won’t name names, but many Republicans, who either pretended to be outraged or were genuinely upset, had no issues at all with previous Republican administrations using the military for offensive wars without prior permission from Congress.

But that’s another article…

Frankly, what surprises me is not Panetta’s claim that the president has unlimited authority to wage war without Congressional approval. Lots of presidents, both Republicans and Democrats, have claimed that authority, at least since Truman’s decision to intervene in the Korean War without consulting Congress. What surprises me is that anyone in the Obama administration still feels obligated to provide any kind of legal cover.

Yet Secretary Panetta did bother to offer a up a fig leaf, asserting that the president has the right to defend this country without obtaining prior permission from Congress. I do think it is worth analyzing this statement, since it can illustrate something about what powers the Constitution actually delegates to the federal government when it comes to waging defensive war.

So was Panetta correct about a president’s right to defend this country without permission from Congress?

The Short Answer is, yes.

I’m unaware of any reliable constitutional scholar who would deny that the president is empowered by the Constitution to repel an invasion of U.S. territory. In their book, Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush, Kevin Gutzman and Tom Woods explain the Framers’ intent.

“Although the Constitution withholds from the president the power to commence hostilities, the Framers did envision a defensive presidential power to respond to attacks in extreme cases that will admit of no delay.”

However, equating the initiation of a no-fly zone, air strikes against foreign military targets, or the commitment of ground forces, however small or covert, in a country located on the other side of the planet with “defending” our country is simply “rhetorical nonsense — nonsense upon stilts.”, as Jeremy Bentham once described a different set of ideas I happen to embrace.

Even if the Assad regime, or the insurgents who might overthrow it, presented a clear and present danger to the United States, that would hardly justify military action without a declaration of war from Congress. As Kevin Gutzman and Tom Woods pointed out in the same chapter of their book, “Even when Japan attacked Pearl Harbor in 1941, President Franklin Roosevelt did not retaliate on his own authority but went to Congress for a declaration of war.”

There is no constitutional basis whatsoever for engaging in offensive warfare unless the decision to do so is made by Congress. For a more detailed examination of this question, I highly recommend reading constitutional scholar, Robert G. Natelson’s article, “Obama’s Libyan Operations are Unconstitutional”. His piece systematically dismantles the flimsy arguments of those who would try to portray Obama’s actions in Libya as somehow “less than war”, or an attack on Syria as a defensive operation.

Even though it appears that U.S. military action in Syria may be off the table for now, it’s still important to examine the arguments surrounding this conflict and previous ones as well. When arguments are made in support of unconstitutional wars in the future, those of us who wish to support and defend the Constitution can be better prepared to explain and articulate the very limited war powers delegated to the executive branch, in order to educate others who may still be on the fence.

What Do We Do About it?

And for those who do still care about the Constitution and the rule of law, the next question must be, “What then do we do about it when those in power simply refuse to abide by the Constitution?”.

I’m personally convinced that the internal checks and balances built into the federal government broke down long ago and are, for all practical purposes, useless at this point in history. The three branches of the federal government conspire to usurp more power at least as often as they act to limit each other’s power. That’s why many concerned citizens, frustrated by the failure of elections to arrest the progress of tyranny year after year, insist that there’s just going to have to be a revolution at some point. But the federal system established by the Constitution provides at least one final structural protection against tyranny that does not involve popular resistance, secession or full scale revolution. That protection comes from the power of the states.

In his “Exposition of the Virginia Resolutions of 1798”, Judge Abel P. Upshur asked the question, “Is there, or is there not, any principle in the Constitution of the United States, by which the States may resist the usurpations of the Federal Government; or are such usurpations to be resisted only by revolution?”

I certainly believe that there is such a conservative principle in the Constitution, otherwise I would not be writing this. And thankfully, the Tenth Amendment Center has been providing model legislation for several years, specifically designed to help state legislators make use of that conservative principle, otherwise known as state nullification.

But can state nullification provide an effective check against an out of control president determined to wage unconstitutional wars? I certainly believe it can. But in order to work, it requires the people of the several states to shift their focus from Washington, D.C. to their state capitals.

Defend the Guard legislation is designed to reassert the authority of governors over their Army and Air National Guard troops. Many people are unaware of the enormous role played by Army and Air National Guard in overseas military operations, without which the occupation of countries such as Iraq and Afghanistan would be virtually impossible.

Constitutional Homeland Security

Under the Constitution, the organized militia (now called the National Guard after the 1903 Dick Act) may only be called into duty by the federal government in three specific situations. According to Article I, Section 8; Clause 15, the Congress is given the power to pass laws for “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

The organized militia was intended by the Founders and Ratifiers to be defense force and nothing more. Deployments outside the country were not considered, and neither were internal deployments in pursuance of powers that were not delegated to the federal government.

Congress has passed numerous laws in the past 100 years giving the federal government additional authority not mentioned in the Constitution. But without amendment, altering the enumerated powers by legislative fiat is, in and of itself, unconstitutional. Campaigns in states around the country are working to reassert the authority of governors over guard troops.

Become a member and support the TAC!

But that’s not all. Other state nullification bills designed to limit the power of the presidency have been introduced as well. The Liberty Preservation Act, for example, is a state-level response to constitutional violations in the National Defense Authorization Act of 2012.

In many ways, resistance to executive usurpation and tyranny has just begun at the state level. But make no mistake, the struggle is on, and it mustn’t cease. Rather, it must be escalated. Because as much as many of us would like to believe that Congress will suddenly grow a spine, or that the federal judiciary will rein in the imperial presidency sometime soon, such a hope is unrealistic at best.

The states on the other hand, haven’t been completely subordinated, and it’s through them that We the People still have a chance to prevent Caesar from completing his crossing of the Rubicon.