Tag Archives: Executive Privilege

The Great War Powers Misconstruction

The term “war” is found at four locations in our Constitution. However, the word alone signals nothing about the powers of the two political branches the Constitution creates, executive and legislative, and nowhere in the Constitution does the term “war powers” appear. At some point in our history, the word “powers” was coupled with “war.” There has ensued a continuing argument about who, as between the President and Congress, owns those powers. But little or no attention has been given to just what powers are being discussed, and no attention at all has been given to what the Constitution itself says about those powers. Yet, a close examination of the Constitution readily reveals the answers. Congress owns all of the powers to create and field a military (no matter how the powers are defined), and the President has the executive authority. The involvement of the United States in multiple military conflicts, ultimately at the behest of the President and not the Congress, is evidence that currently both the executive and legislative branches operate contrary to the mandates of the Constitution. Thus, the notion of war powers must be reconsidered.

Covert War and the Constitution: A Response

Words are imperfect instruments for conveying ideas, and interpreting the intended meaning of words is often a challenge, especially when more than two centuries have passed since the words were written and their meanings have evolved over the years. For example, the terms “executive power” and “declare war” had widely understood meanings when the Constitution was written. In his classic 1922 study, The Control of American Foreign Relations, Quincy Wright explained that “when the constitutional convention gave ‘executive power’ to the President, the foreign relations power was the essential element in the grant, but they carefully protected this power from abuse by provisions for senatorial or congressional veto.” Wright referred to the writings of Locke, Montesquieu, and Blackstone5 as “the political Bibles of the constitutional fathers,”6 adding: “In foreign affairs . . . the controlling
force is the reverse of that in domestic legislation. The initiation and development of details is with the President, checked only by the veto of the Senate or Congress upon completed proposals.”

The Constitutionality of Covert War: Rebuttals

Professor Turner argues that Congress’s power to “declare war” and issue letters of marque and reprisal is an irrelevant “anachronism” in today’s world, and was virtually irrelevant even in 1787. According to Turner, the Declare War Clause only prevents the President from launching “a major aggressive war.” In his view, the President has the power to launch “minor” aggressive wars and even initiate “major” warfare (“major” is not defined) when such warfare can broadly be termed “defensive,” a vague term also not defined by Turner. Of course, no sane President would openly claim to launch an “aggressive” (or in eighteenth century parlance, an unjust war).

For example, President George W. Bush asserted that the 2003 invasion of Iraq was “defensive” although Iraq had neither attacked us nor was imminently threatening to do so, and the invasion was widely viewed by the world community as violative of the U.N. Charter. Turner’s interpretation of the Declare War Clause, of which James Madison wrote, “in no part of the Constitution is more wisdom to be found,” reduces this important provision to a virtual nullity, easily evaded by the executive’s claim that a war is either “defensive,” or not “major.”