The Constitution, the Executive Branch and War Powers

In reading the Constitution, we can plainly see that 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 Executive, the President is assigned only two powers relating to foreign affairs; commander-in-chief of the armed forces, and the power to receive ambassadors.

The United States Constitution, which is the supreme law of the land in our country, delegates the power to declare war to the Congress and the power to wage war to the President. What that means is that only the Congress, as representatives of the People and of the States, can determine whether or not the nation goes to war. If the People, through Congress, decide that the nation shall go to war, the President then, and only then, has the authority to wage it.

Unless the country is being invaded, if the congress does not declare war against another country, the president is constitutionally barred from waging it, no matter how much he desires to do so. This is, again, shown clearly in the following statements:

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The Constitution as a Limit on Executive Power

by Bob Barr

Testimony before the House Judiciary Committee, July 25, 2008

Mr. Chairman and distinguished Members of this Committee, on which I was privileged to serve throughout my eight years as a Member of the House of Representatives, it is an honor to appear today to speak on the importance of the separation of powers in the federal government as a tool for protecting the people’s liberties. Many vital issues confront our nation, but few are more important than repairing and maintaining the constitutional bulwarks that guarantee individual liberty and limit government power.

Mr. Chairman, today I appear as a private citizen, and also as a former Member of this Committee and as a once-again practicing attorney. I am also honored to be serving as the presidential nominee of the Libertarian Party.

It is axiomatic that no matter how much power government has, it always wants more. While the executive branch under George W. Bush has taken this truism to new heights, it is not unique in its quest for power. Unfortunately, the other branches of government have failed to do enough to maintain the constitutional balance. Particularly disturbing has been Congress’ recent reluctance, in the face of aggressive executive branch claims, to make the laws and ensure that the laws are properly applied. This failure has inhibited the operation of the separation of powers, necessary to provide the checks and balances which undergird our system of constitutional liberty.

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The Presidency: Executive or Imperial Branch?

by Ivan Eland

More memos recently have surfaced that were written early in the Bush administration by John C. Yoo from the Justice Department’s Office of Legal Counsel — the man who gave us the administration’s horrifyingly narrow definition of torture. As difficult as it is to believe, the recently released memos are even scarier than the original torture memo.

Yoo boldly asserts that the president’s power during wartime is nearly unlimited. For example, he argues that Congress has no right to pass laws governing the interrogations of enemy combatants and the commander-in-chief can ignore such laws if passed, and can, without constraint, seize oceangoing ships.

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Signing Statements Erode Constitutional Balance

by Rep. Ron Paul Recently, the General Accounting Office studied nineteen instances where the President issued so-called “signing statements.” In such statements, the President essentially begins the process of interpreting legislation – up to and including declaring provisions unconstitutional—hence often refusing to enforce them. The GAO study found that in nearly 1/3 of the cases…

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