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 containingthe restriction. For this reason, the Constitution required Congress to votebefore 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 hiswar powers. In late 1993, he claimed that "the Constitution leaves thepresident, for good and sufficient reasons, the ultimate decisionmakingauthority."

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

Alas, this executive presumption goes back to Richard Nixon and HarryTruman and, indeed, much further. Observed President Abraham Lincoln: "Kingshadalways been involving and impoverishing their people in wars, pretendinggenerally, 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." AsLincoln explained: "This, our Convention, understood to be the mostoppressive ofall Kingly oppressions; and they naturally resolved to so frame theConstitution that no one man should hold the power of bringing thisoppression upon us."

Of this there is no doubt. Wrote James Madison in 1793, "the power todeclare war is fully and exclusively vested in the legislature." ExplainedVirginia's George Mason, the president "is not safely to be entrusted with"the powerto 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 iscalculated to guard against it. It will not be in the power of a single man,or asingle 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. willavoid unnecessary international conflicts, but it does force a publicdebate.

Of course, there will always be gray areas. But that does not mean thereare no unambiguous instances where congressional approval is required, suchas launching an aggressive war against Yugoslavia. Indeed, Kosovo is aparticularly easy case since it is not cluttered with U.N. resolutions andclaims aboutthe 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 againstTruman'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 ofthe federal government. The founders vested the power to declare war inCongress because they feared presidents would do precisely what they aredoingtoday: regularly taking the nation into overseas conflicts that have at mosta 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'sacquiescence, surprised when refugees overwhelmed neighboring countries andsurprisedwhen Yugoslavia captured three U.S. soldiers. A full and unfetteredcongressional 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 fivemen in the Kremlin. Who has the ability to change that and bring them home?Maybeone, maybe five men in the Kremlin. Nobody else. And that is, I think, theheight of immorality."

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

Doug Bandow

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