Commentary

Clinton Stepped Beyond Constitutional Limits

This article originally appeared in the Los Angeles Times on April 30, 1999.

Last week, the House voted against declaring war on Yugoslavia. But it also refused to order the withdrawal of U.S. forces. President Clinton can thus continue to prosecute the war that he illegally started.

The House did vote to bar funding to deploy ground forces in Kosovo but Senate assent is unlikely, and the president could veto any bill containing the restriction. For this reason, the Constitution required Congress to vote before President Clinton unilaterally inaugurated war, not afterward. The administration’s costly bungling in Yugoslavia illustrates why the framers intended that the decision to go to war be vested in the Legislature.

Like his predecessors, Clinton has resisted any attempt to restrict his war powers. In late 1993, he claimed that “the Constitution leaves the president, for good and sufficient reasons, the ultimate decisionmaking authority.”

The precedents are many. George Bush attacked Panama with merely a nod to Congress, and only reluctantly accepted a legislative vote before going to war against Iraq. Ronald Reagan made not the slightest pretense of consulting Congress before invading Grenada. And Clinton ended up only a Carter-brokered agreement away from invading Haiti.

Alas, this executive presumption goes back to Richard Nixon and Harry Truman and, indeed, much further. Observed President Abraham Lincoln: “Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object.”

America’s founders intended to take a different path. Article 1, Sec. 8(11) states that “Congress shall have the power … to declare war.” As Lincoln explained: “This, our Convention, understood to be the most oppressive of all Kingly oppressions; and they naturally resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.”

Of this there is no doubt. Wrote James Madison in 1793, “the power to declare war is fully and exclusively vested in the legislature.” Explained Virginia’s George Mason, the president “is not safely to be entrusted with” the power to decide on war. Mason favored “clogging rather than facilitating war.” James Wilson advocated a strong presidency, but approvingly observed that the new constitutional system “will not hurry us into war.” Instead, “It is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress.”

History demonstrates the danger of trusting chief executives to take the nation into war. A legislative vote may not guarantee that the U.S. will avoid unnecessary international conflicts, but it does force a public debate.

Of course, there will always be gray areas. But that does not mean there are no unambiguous instances where congressional approval is required, such as launching an aggressive war against Yugoslavia. Indeed, Kosovo is a particularly easy case since it is not cluttered with U.N. resolutions and claims about the threatened safety of Americans.

Successive presidents have been able to ignore the Constitution’s clear strictures only because successive Congresses have allowed them to do so. The partisan flip-flops have been dazzling: Republicans raged against Truman’s actions but defended Nixon; Democrats demanded that Bush go to Congress but encourage executive warmaking by Clinton.

Much more is at stake than a theoretical dispute between the branches of the federal government. The founders vested the power to declare war in Congress because they feared presidents would do precisely what they are doing today: regularly taking the nation into overseas conflicts that have at most a tangential relationship to U.S. security.

The issue of war and peace is too important to leave to the president. Perhaps this never has been more obvious after watching this administration blunder into and exacerbate a crisis in the Balkans. The president and his advisors were surprised when the Kosovo Liberation Army first rejected the Rambouillet diktat, surprised when bombs did not compel Belgrade’s acquiescence, surprised when refugees overwhelmed neighboring countries and surprised when Yugoslavia captured three U.S. soldiers. A full and unfettered congressional debate could have prevented the debacle.

Years ago, Defense Secretary Caspar Weinberger asked: “Now who among the Soviets voted that they should invade Afghanistan? Maybe one, maybe five men in the Kremlin. Who has the ability to change that and bring them home? Maybe one, maybe five men in the Kremlin. Nobody else. And that is, I think, the height of immorality.”

He’s right. But how is the fact that one man in the White House can decide to attack Yugoslavia any different?

Doug Bandow, a senior fellow at the Cato Institute, is a former special assistant to President Reagan.