WASHINGTON: The Framers of the Constitution were fearful of executive power. They sought to limit and divide such power with a system of checks and balances. When it comes to war, only Congress has the authority to declare war.
The power of the executive has been growing.
Under President George W.Bush, there are those that said it was an “imperial presidency.” In “The Cult of the Presidency,” the Cato Institute’s Gene Healy noted that the administration’s broad assertion of executive power included,
“the power to launch wars at will, to tap phones and read e-mails without a warrant, and to seize American citizens, and hold them for the duration of the war on terror, in other words perhaps forever.”
Healy points out that,
“Neither Left nor Right sees the President as the Framers saw him: a constitutionally constrained chief executive with an important, but limited job, to defend the country when attacked, check Congress when it violates the Constitution, enforce the law—-and little else. Today, for conservatives as well as liberals, it is the President’s job to protect us from harm, ‘grow the economy,’ to spread democracy and American ideals abroad, and even to heal spiritual malaise.”
Telling us what he thought of the role of Congress, President Obama vowed in 2014 that,
“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone,” Obama says following his first Cabinet meeting of the year.
”And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward in helping to make sure our kids are getting the best education possible, making sure that our businesses are getting the kind of support and help they need to grow and advance, to make sure that people are getting the skills that they need to get those jobs that our businesses are creating.”
This Executive Order leadership continues today.
It has little to do with the Constitution and is a formula for the rule of one individual and has had appeal to those in the White House of both parties. Since World War ll, we have gone to war without a congressional declaration in Korea, Vietnam, Iraq, Afghanistan, and a host of smaller conflicts—-such as the conflict in Yemen in which we are now engaged.
Pretending that we are not really at war is a tactic that Presidents of both parties have used. In 2011, President Obama said he was free to bomb Libya because NATO-led the action, did not involve “sustained fighting or active exchanges of fire” and so did not meet the definition of “hostilities.”
President Trump has advanced a similar argument for the U.S. involvement in Yemen, which was initiated by President Obama. The U.S. is very much involved in an undeclared war in Yemen.
The Economist reports
“After all, American commanders sit in an operations room in Riyadh next to their Saudi counterparts. American commanders sit in an operations room in Riyadh next to their Saudi counterparts. American engineers service the Saudi warplanes. Until recently, American planes refueled the Saudi bombers mid-flight too. War at arm’s length is still war. Meanwhile, the fighting has left 10 million Yemenis ‘one step away from famine,’ warns the U.N.’s World Food Program Congress.”
Congress has finally attempted to reclaim its war-making power. Bipartisan majorities in both the House and Senate passed legislation demanding an end to U.S. support for the Saudi-led military coalition operating in Yemen, a country plagued by more than four years of civil war.
The legislation sought to use Congress’s war powers to curtail U.S. involvement.
The measure gained support after the killing of Saudi journalist Jamal Khashoggi last fall. It brought along several Republicans troubled by the worsening humanitarian situation in Yemen, where more than 20 million people are at risk of starvation. President Trump vetoed the congressional resolution—-taking unto himself the war-making power which the Constitution bestows explicitly upon the Congress.
It is interesting to remember Alexander Hamilton’s declaration in Federalist No. 69:
“(the president’s authority) …would nominally be the same with that of the King of Great Britain, but in substance inferior to it…While that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies, all of which, by the Constitution appertains in the legislature.”
According to the decision in the case of Perkins v. Rogers, the Supreme Court declared:
“The war-making power is, by the Constitution, vested in Congress…and…the President has no power to declare war or conclude peace except as he may be empowered by Congress.”
We have a situation in which Congress, which has the power to make war, is calling upon the executive to end the war in Yemen.
A war which Congress never approved and now opposes.
Moreover, the President, who has no constitutional power to declare war, has vetoed this legislation.
What is left of the Framer’s intent?
What, one wonders, is left of the intent of the Framers when it comes to making war? Daniel Larison captured the strange situation we are in The American Conservative:
“The U.S. has not advanced any of its security interests through its involvement in this war and, in fact, the war effort undermines the effort to combat al-Qaeda in the Arabian Peninsula…On top of all that, the U.S. involvement in the war is unauthorized and illegal, as Congress has made clear. Increasing U.S. involvement in defiance of majorities in the House and Senate would show even more contempt for the Constitution.”
Both parties have been co-conspirators in expanding the power of the President. Even at the beginning of the Republic, observers such as John Calhoun, in his Disquisition on Government, predicted that the powers of government would inevitably grow.
That those in power would always advocate a “broad” use of power, and those out of power would argue for a “narrow” use of power, and that no one would ever turn back Governmental authority once assumed.
Today, with people calling themselves “conservative” in power, we see what Calhoun had in mind, as claims of executive power, in Yemen and beyond continues to grow.