In contrast, the legislative branch is a highly risk-averse talking shop which will only take the nation from peace to war in response to actual aggression against the United States. Gratuitous wars have nothing in them for members of Congress. Their powers and stature are eclipsed by an omnipotent president. They win no fame or remembrance. Congress has declared war in only five conflicts since its birth 227 years ago, and only when members were convinced the United States had been attacked.
Everyone who participated in the drafting, debating and ratifying the Constitution highly distrusted the presidency in matters of war and peace. They unanimously entrusted to Congress exclusive responsibility for taking the nation to war in Article I, section 8, clause 11 of the Constitution. The authors did not believe the power of the purse would be sufficient to prevent presidential wars. They knew once the president commits troops, members of Congress would be forced to provide funding under the banner of patriotism. The universal sentiment was expressed by James Madison in a letter to Thomas Jefferson: “The constitution supposes, what the History of all Govts demonstrates, that the Ex. 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 Legisl.”
Despite the clarity of the constitutional prohibition, presidents have chronically decided to take the nation from peace to war since at least President Harry Truman’s decision to fight the Korean War in 1950 without a congressional declaration. Fueled by a multi-trillion dollar military-industrial-counterterrorism complex, presidential wars have come to dominate the nation’s budget and agenda. The warfare state has given birth to the surveillance state, the bail-out state, and the welfare state. The federal government has ballooned into a $4.3 trillion Leviathan.
Congress and the American people have generally ignored the lawlessness of presidential wars and the havoc they have wrought both at home and abroad. We are imitating all previous empires in our enthusiasm for self-ruination. Presidential wars have become de facto constitutional. This must change.
Through a “No Presidential Wars statute,” Congress needs to establish rules defining and sanctioning presidential wars prospectively. The law should warn before it strikes. And nothing good can come from taking up arms against history.
Presidential wars should be defined as wars in which the president decides to take the United States from a state of peace to a state of war. It should not include wars in which Congress has decided itself to take the nation from peace to war. Neither should it include cases in which the president responds with proportionate military force in national self-defense against actual or imminent aggression or a declaration of war against the United States by a foreign nation or non-state actor. But presidential wars should include cases in which the president unilaterally decides to make the United States a co-belligerent in an ongoing war by systematically or substantially supplying one of the warring parties with war materials, military troops, trainers or advisers, military intelligence, financial support or its equivalent. Presidential wars should further be defined to include cases where an incumbent continues an unconstitutional presidential war commenced by a predecessor.
The “No Presidential Wars” statute should also declare that a violation will be deemed a high crime and misdemeanor under Article II, section 4, and will cause the President to be impeached by the House, convicted by the Senate, and removed from office.
It would mark the Constitution’s finest hour, and save the republic from destruction.
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