Unchecked presidential wars.

• Author: Fisher, Louis

With studied care and deliberation, the Framers of the Constitution created a structure to prevent presidential wars. They specifically rejected the British model that allowed the monarch to take the country to war and to exercise exclusive control over foreign policy. Making fundamental judgments about representative government, popular control, and human nature, they placed the power of war and peace with the legislative branch and divided foreign policy between the President and Congress. For the most part, the Framers' model prevailed from 1789 to 1950.

That constitutional system is in tatters. Because of presidential initiatives after World War II--aggravated by congressional acquiescence and judicial passivity--there is no effective check on presidential wars. Presidents claim they can go to war wherever they like, for whatever reason, without seeking authority from Congress. What the Framers feared and tried to avoid we now have: unilateral presidential warmaking.

President Truman's decision to go to war against North Korea in 1950 represented a subversion of the Framers' design.(1) For the first time, a president had involved the nation in a major war without seeking a declaration or authorization from Congress. Over the last decade, Congress has stayed on the sidelines watching Presidents George Bush and Bill Clinton engage militarily against Panama, Somalia, Haiti, Bosnia, Yugoslavia, Afghanistan, and Sudan. Congress did authorize war against Iraq in 1991, but since that time the scope of military operations against that country has been dictated by presidents, not Congress.

Political developments over this past half century do little to support the Framers' expectation that each branch of government would protect itself by fighting off usurpations and transgressions by other branches. The contemporary Congress has abdicated war powers that had been entrusted to the legislative branch--the people's representatives. The legislative check has been reduced to possibly taking some future action to deny funds for an unpopular war started by the President. The judicial check, for the most part, does not exist.

Part I of this Article addresses the Framers' design for the American government, focusing on what they had learned from the colonial governments and the delegate debates over the use of checks and balances. Part II discusses the Framers' intent in giving Congress the power to initiate war. Part III provides a brief description of the Framers' model in practice while describing instances, even before 1950, where presidents initiated the use of force without congressional approval. In Part IV, I analyze Professor John Yoo's argument that the Framers' intent was to give the President the initiative in war. Part V focuses on the application of the War Powers doctrine to Kosovo and presidential reliance on U.N. Security Council resolutions and NATO decisions as "authority."

1. THE FRAMERS' DESIGN

   The Framers believed that a powerful dynamic of institutional self-defense would safeguard the structure of separation of powers and give life and energy to the system of checks and balances. They expected Congress to be especially vigilant in protecting the power to go to war. Their model worked for about 160 years, but the record since 1950 reveals an alarming decline in congressional confidence and institutional self-esteem. Lawmakers regularly deride the capacity of Congress to exercise its war and spending prerogatives.(2) What the Framers had in mind clearly is not working today. Citizens need to understand what has happened, and why, and debate whether the original constitutional principles are worth preserving.

   James Madison argued in Federalist No. 51 that

   the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.(3) The core principle: each branch would defend its prerogatives. Madison asked how the partition of power among the three branches would be maintained. Acknowledging that other systems had been inadequate, he stated that "the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places."(4)

   The Framers depended on a written constitution, representative government, and democratic pressures, but they wanted more. Madison agreed that a "dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."(5) The auxiliary precautions: separation of powers, checks and balances, and each branch intent on safeguarding its institutional interests.

   We have it from Woodrow Wilson that the makers of the Constitution "followed the scheme as they found it expounded in Montesquieu, followed it with genuine scientific enthusiasm."(6) James Bryce argued that the Framers "had for their oracle of political philosophy the treatise of Montesquieu on the Spirit of Laws.... No general principle of politics laid such hold on the constitution-makers and statesmen of America as the dogma that the separation of these three functions is essential to freedom."(7) Montesquieu was indeed frequently cited at the Federal Convention and the state ratifying conventions, and Madison praised him as "the celebrated Montesquieu" and the "oracle" who was always consulted on the separation doctrine.(8)

   The American Framers did not borrow the separation doctrine from Montesquieu, who presented a tidy, uncomplicated model of separate branches, free of partisan battles and the evolving cabinet system in England. Montesquieu promoted an idealized form of government, corresponding more to his conceptions--or misconceptions--than to the reality of British politics.(9) Justice Holmes spoke bluntly of this contrivance: "His England--the England of the threefold division of power into legislative, executive and judicial--was a fiction invented by him, a fiction which misled Blackstone and Delolme."(10)

   For the most part, Montesquieu adhered to a strict separation of powers. He maintained that the legislative body should not impeach the executive, for the "moment he is accused or tried there is an end of liberty."(11) He gave his "senate" (the house of nobles) the power to reject bills relating to supplies (funding), but no authority to amend them.(12) He allowed the executive a veto to reject legislation but opposed any other participation in the legislative process.(13) On all those points, and others, the Framers rejected Montesquieu. Yet they agreed on his fundamental premise that power must check power: "il faut que, par la disposition des choses, le pouvoir arrete le pouvoir."(14)

   1. Lessons Learned at Home

      Colonial governments in America accumulated their own insights into the problem of checks and balances. During this period, complaints about institutional encroachments were common. After achieving their independence from England, many of the states wrote into their constitutions explicit guarantees for a separation between the branches of government, but the meaning of separation varied from state to state and became a source of continual misunderstanding. For example, despite the strong language in the Massachusetts Constitution forbidding one department from exercising the powers of another, the executive possessed a qualified veto over the legislature; the senate acted as a court of impeachment; members of the judiciary were appointed by the governor; and the legislature appointed the major generals of the militia, an advisory council for the governor, and several officers of the administration.(15)

      Other state constitutions announced separation in strict terms but departed from the maxim when necessary. New Hampshire, the last of the thirteen states to form a constitution, prudently acknowledged the gap between a literal interpretation of separated powers and the demands of workable government. The three departments were to be kept "as separate from and independent of each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity."(16)

      In the months just before the Philadelphia Convention, Madison identified for Thomas Jefferson the essential elements of the new national government, including a reorganization to provide for separate branches. Madison's interest in three branches was drawn more from administrative necessities than from the writings of Montesquieu. The Continental Congress had mismanaged its power under the Articles of Confederation, he told Jefferson, and administrative duties under the new government would be even more demanding.(17) At the convention, Madison reminded the delegates that experience with the states had proved "a tendency in our governments to throw all power into the Legislative vortex. The Executives of the States are in general little more than Cyphers; the legislatures omnipotent."(18) The separation set up in the state constitutions had turned out to be a matter of mere "parchment barriers" incapable of preventing legislatures from drawing other branches into their orbit.(19)

      After the convention had adjourned, Madison confided to Jefferson that the boundaries between the executive, legislative, and judicial powers, "though in general so strongly marked in themselves, consist in many instances of mere shades of difference."(20) He set out in The Federalist Papers to contrast the...