Saturday, April 15, 2017

The President's Powers to go to War


For John, BLUFThe President can start a military action, but Congress can cut it off.  Nothing to see here; just move along.




From Bloomberg and Law Professor Stephen L. Carter, on 7 April.

Here is the Bottom Line, Up Front (BLUF):

The result is that the commander in chief can order the U.S. military into action whenever it suits his judgment.  Many people, myself included, are uneasy with that hard truth.  For better or worse, however, it’s been our practice for a very long time.  Clinging to the long-dead notion that Congress must first declare war might be comforting, but it has nothing to do with reality.
But, back to the beginning, here is the lede plus two:
So now President Donald Trump is a war leader.  His decision to launch 59 Tomahawk cruise missiles across an international border is an act of war.  And, like most of America’s wars, it will never be declared by Congress.

Immediately upon the news of the Syria strike breaking Thursday night, Twitter erupted with complaints that the U.S. Constitution vests the power to declare war only in Congress.  This common worry misapprehends both the structure of the Constitution and the historical understanding of the declaration of war.

Let’s start with the obvious:  Every U.S. president, all the way back to the founding, has at some point used military force without first obtaining the approval of the legislative branch.  A few snippets: George Washington fought the so-called Northwest Indian War to subdue the native people of Ohio.  James Monroe sent forces to conquer Amelia Island, off Florida.  James Buchanan sent Marines to halt the civil war in Nicaragua.  In 1893, U.S. forces overthrew the government of Hawaii, although apparently without White House permission.  Still, the overthrow stuck.  On the eve of World War I, Woodrow Wilson ordered the Marines into Mexico.  Half a century later Ronald Reagan invaded Grenada.  Most prominently, in the Cuban Missile Crisis, President John Kennedy took the nation to the brink of nuclear war with the Soviet Union.

I too would like to tighten up Congress' control of the President's war making authority, but I think practical facts suggest it would be a bad idea.

If North Korea starts pummeling South Korea the President shouldn't have to wait for Congress to gather back from vacation to act.  He needs to act now.  If not for our commitment to our friend and ally South Korea, then for our US forces stationed in South Korea.  In modern warfare, if "A" is attacked, it may require "B" to act so that "C" can do something to help "A" protect itself.  This isn't the right to self defense inherent in any soldier's Rules of Engagement.  This isn't just a home owner defending herself with a pistol.  It is the neighbor down the street attacking a pickup truck which is shooting rockets from around the corner.

Here is the other side.  Congress, through the power of the purse, has the ability to end any military action, and has.  I have personally experienced this.  I was stationed at Korat RTAFB in 1973, flying missions into Cambodia, supporting the legitimate government against the insurgent Pol Pot.  The US Congress cut off the money for those missions.  Because I was so disgusted, I took leave and went home to Florida, where I watched on TV Lt Col Paul Schwim crawling out of the back seat of the Wing Commander's airplane, after the last official USAF mission into Cambodia.  Given that I was the Wing Commander's Instructor Pilot, that would have been me flying with Colonel Bob Crouch if I had been there.  My war protest.

Hat tip to the InstaPundit.

Regards  —  Cliff

  Professor Carter is a Bloomberg View columnist.  He teaches law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall.  His has several fiction and non-fiction books to his credit.
  In those days the Wing Commander flew with an Instructor Pilot.  By the time I became a Wing Commander I could fly solo.  Which was more fun.

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