Declarations of War

The last time the United States Declared war on anybody was back in December of 1941 when President Franklin D. Roosevelt went to the Congress and asked for a declaration of war against Japan, signalling our entry into WW II. Later a formal declaration was made against Germany.

President Truman sent the armed forces to Korea. President Eisenhower sent advisors to Vietnam. Through Presidents Kennedy, Johnson, and Nixon the advisors escalated to the Vietnam War (undeclared) with about 500,000 troops in the field held together by the Tonkin Gulf Resolution. President Johnson sent the Marines into the Dominican Republic. President Carter mounted the Desert 1 operation to rescue the hostages in the American Embassy in Teheran. President Reagan sent the army into Grenada. President Bush sent the army into Panama and now he has sent them to Saudi Arabia. I read somewhere recently that the United States over the years has had 17 incursions into Nicaragua in this century. The most the Congress has been able to do, so far, is to pass the War Powers Act, which requires the president to come to the Congress if he intends to keep the troops in the field for more than 90 days. The Boland amendment to the War Powers Act was the central piece in the Iran-Contra hearings with the question being was the War Powers Act, as amended by the Boland Amendment, violated by the Executive Branch in the Contra resupply effort mounted by Lt. Col. North.

The Commander-in-Chief

How did the nation get into this predicament? How can the President of the United States send troops all over the place, without a Congressional declaration of war? What is his authority to do this? The Constitution says that only the Congress can declare war but designates the President of the United States the Commander-in Chief of its armed forces, that's why.

The Framers of the Constitution had a great abhorrence of standing armies. The lessons of their history was that monarchs customarily abused their powers to command armies and created untoward mischief in the process. Charles I of England was beheaded in part because of his abuse of his war making powers, and his use of the army to impose his will on his subjects. And of course, George III was the designated villain of the Declaration of Independence. The Framers of the Constitution were unwilling to grant such authority to the President of the United States. They were not opposed to armies per se they were opposed to standing armies. When the Revolution had been successfully concluded, the Continental Congress abolished the Continental Army and authorized an army of only a few thousand men.

While the Constitution makes provision for an army, with the President as its Commander-in-Chief, it also limits appropriations for the military, only to the life of the particular Congress that appropriated it. By the terms of the Constitution there is to be no carry over of funds for the military from one Congress to the next. Each Congress is to determine the extent to which the military will be supported. A recent Supreme Court decision has held that military research could be extended over more than one Congress, making it the only exception.

The Militia

If the Founding Fathers abhorred a standing military force, how did they intend to provide for the nation's security? The Militia Act of 1797 makes elaborate provision for a militia, to be constituted of all the able bodied men from ages 16 to 45 subject to call and service at a moment's notice. The service in every case was to be short, 30 days.

The 2nd amendment to the Constitution provides that the arms (weapons: pikes, halberds, swords as well as muskets) of this militia could not be seized for the payment of debt, and gave rise to the erroneous proposition that the Constitution guarantees the right of the people to own guns. People do not have a constitutional right to own firearms, the Constitution guarantees the simple right of a militiaman not to have his weapon seized to pay his rent or his bar bill. The only people who have the right to bear arms for the nation are those persons sworn to obey military law and who thereby consent to submit to the code of military justice. Everybody else owns a gun subject to the local police regulations concerning maintenance of the peace.

Creatures of the States

The militias were creatures of the states and were commanded by the governors of the states. This was a further check on the power of the President. The President could not call out the militia unless he "nationalized" them. On a day to day basis, the responsibility for maintaining the peace of the nation was vested in the states and their police arms. To this day there is no national police force. The militia worked well for purely local disputes with Indians or outlaws, but because it was a purely local force that was taking time from its daily routine, it soon became burdensome for the militia to respond to border disputes, or the threats of Indian uprisings that took them far from home for more than thirty days. In many of the militia call-ups, the time spent traveling to and from the disturbance took up the thirty days.

The severe test the militia failed was the Civil War. When the hostilities that led to the Civil War broke out, President Lincoln called on the militias of the several states involved to quell the disturbance. The militias of the South not only failed to respond, they became the Confederate Army. The militias of the North were mustered but they had the limitations of service, and furthermore were not trained to fight a war.

Volunteers

Even before the Civil War, volunteer units were formed, usually under the command of the man who mustered them, and sent on expeditions that would have exceeded the time the militia could be called out. These were usually frontier skirmishes with Indians. For the Civil War, many volunteer regiments were formed. The Federal Government, however was compelled, by the nature of the war effort, to muster a regular army and to institute a draft. A draftee could purchase a substitute, to serve in his place, for $300. Nevertheless the draft provoked a violent riot in New York City. Many blacks of the city were hung from lamp posts to protest the war to free the slaves.

After the Civil War, the army was sent to pacify the West and what followed were the Indian Wars and the Mexican War. The modern plains Indians have not reconciled themselves to the 7th Calvary to this day. After the pacification of the West and the conclusion of the war with Mexico, there remained little for a regular army to do and they were, for the most part, demobilized.

The militia proved to be a weak tool to carry out the will of the nation and in 1917, the National Guard was formed and took the place of the militia, not entirely though, for we still have the provision for a militia today which goes by the name of Home Guard.

We had lots of gunboat diplomacy in the interim, but these activities usually involved small numbers of regular military in highly localized situations. World War I, on the other hand, was fought to a large extent by regiments of the National Guard, nationalized by President Wilson in the time of that war.

Power of the Purse

By the time World War II came around, the regular army and navy had been reduced and without augmentation could not have defended the interests of the United States. President Roosevelt had neither the manpower or the resources to engage the United States in combat in World War II absent the consent of the Congress and its power of the purse. World War II was fought by the National Guard, the reservists, and draftees for the most part. At the time of the Japanese attack on Pearl Harbor there was no way the President could deploy a counter force, since it did not exist. President Roosevelt had to go to Congress and get a declaration of war and the necessary appropriations to build an armed force, essentially from scratch. Because of the threat from the Soviet Union, the military force of WW II was never really disbanded. It was reduced, but from this time on, the United States had a substantial military force that it could dispatch to the far corners of the globe at the will of the President who was and is the Commander-in-Chief.

As long as the United States has a standing military and the President is the Commander-in-Chief there can be no restraint on the Commander-in-Chiefs authority to command. The Congress has attempted to limit the President's power through the War Power Act but have not really succeeded as we now see from President Bush's invasion of Panama and his deployment of U.S. forces in the Middle East. In the case of Panama, the President's forces were in and out of Panama before the terms of the War Powers Act could go into effect and in the Middle East the President has deployed the U.S. forces in a highly dangerous situation, with the threat of war looming, and, after the fact, is giving the Congress little choice but to support him. Since any military action, no matter how proper or zany (like Grenada), gives the President enormous popularity with the mass of the American people, the Congress is automatically pressured to support the President.

The Framers' Vision

The Framers did not envision the Presidency to be the most powerful of the three branches of government. That role they assigned to the Congress as the only branch representative of the people. That is why the Congress has the sole authority to declare war and to levy taxes. The Congress can limit the authority of the President by passing a law that does so, as long as they do not take away his Constitutional authority, it would take a Constitutional amendment to do that. The War Powers Act attempts to limit the President's authority to engage the U.S. military in combat, but is easily by-passed as was the case with Panama and is now the case with Iraq. Since the President and the Secretary of State seemed to have lured Iraq into confrontation by indicating the United States had no interest in an Arab-Arab conflict, the President's authority to conduct war has been stretched pretty thin. There is going to be hell to pay for the deliberate misinforming of Iraq and the Congress but only after the conflict between the U.S. and Iraq is resolved.

No Easy Matter

Limiting the Commander-in-Chief's ability to command is no easy matter. The Framers had a solution. They didn't give the President a standing military. The Congress has every intention to reduce the defense budget since the cold war is over. The rapid reduction of the U.S. military is being resisted by the President since it takes away one of the two tools of the effort to restructure the U.S. government, namely higher spending to go with lower taxes the other tool. The suckering of Iraq to attack Kuwait came just in time to save the defense budget, i.e. Saddem Hussein is the best friend the Pentagon has. Even when the Congress reduces the defense budget there will remain a large military establishment and the authority of the Commander-in-Chief will be scarcely limited. The ability of the President's ability to deploy U.S. military forces around the world as the President sees fit can be reduced or eliminated only by redefining the U.S. military establishment and its uses.

The United States kept a military force in Europe for 45 years because of the threat of the Soviet Union to Europe. That threat is gone. The need to occupy Germany and Japan is gone, unless we really believe Secretary James Baker when he says the real reason we are in Iraq is jobs, then we should forget about Iraq and reoccupy Germany and Japan. The need, surreptitiously, to supply "freedom fighters" around the world is evaporating due to the withdrawal of the USSR from the instigation of insurrection. The need to station large military forces around the world to protect the United States' interests is rapidly diminishing.

Redefining the Mission

In the cold light of the end of the cold war, the Congress should, with all due deliberation, redefine the mission of the regular armed forces of the United States. There is a need to maintain a force to protect the United States and its possessions. There is a need to have an armed force to protect the overseas interests of the United States. The two are not synonymous. All internal disturbance can be handled by the National Guard, as was the case with the Little Rock, AK school integration problem. Since the Constitution limits the appropriations to the military for only the term of the Congress making them, it is abundantly clear that the Congress can define the purposes for which the money is to be spent. If they don't do it, they should not whine and complain that the President is ignoring them. The President can do what he wants to now because there is no law for him to break except the War Powers Act and so far he hasn't done it. The President's comment, with respect to the looming imminence of war with Iraq, that he would call the Congress into session to support his actions but would not call them to act against them speaks eloquently to his or his advisor's knowledge of the law.

The Congress can do one or several of the following things.

(1) It can reduce the size of the military by reducing the money authorized to support it and by reducing the authorized numbers of women and men that can serve.

(2) It can redefine the mission of the Service. In World War II the U.S. Coast Guard was given the authority to assume combat status and all Coast Guard ships were equipped and staffed accordingly. The Congress can define the role of the regular military to a purely defensive role, such as it had in Europe and Japan. The Joint Chiefs of Staff could then make recommendations to carry out that mission in the light of the present needs.

(3) The Congress could decide that when the United States armed forces are not acting to defend our borders they would participate in international peace keeping missions only under the auspices of the United Nations. This would be similar to our role in Lebanon, however, Lebanon is a bad example because President Reagan removed our forces from the area before it was stabilized (it's still not) because of the gross incompetence of American commanders who negligently allowed significant loss of American life. If this was the rule with Iraq the scenario would have been critically different. The President's timing on giving Iraq the go ahead to invade Kuwait and then deploying American troops would not have been possible, because it would have had to have been the UN that responded to the crisis, not the United States. To have speeded up the process we would have had to intervene with the UN Security Council to act. Our motives would have instantly been called to question, and, while the UN would have acted, the action would have had a different color, and the effect would not have been as dramatic on the outcome of the defense budget negotiations in the Congress. We might well be in exactly the same place in the sand, but it would not be a contest of wills between Saddem Hussein and George Bush, both with enormous discretionary power for destruction. If the United States decided to act within the UN and persuaded Great Britain, France, the Soviet Union and China to do the same (with bribes if necessary) an element of rationality would be introduced into the process. Our national interests would never be at risk in the Security Council of the UN since we have veto power there.

(4) Now that Eastern Europe is moving to democracy, we should place great emphasis on diplomacy to accomplish our needs. Congress should overhaul the Foreign Service, taking the ambassadorships out of the pork barrel. It has been a disgrace to have our diplomatic posts up for sale. This is yet another argument for Federal tax financing of Federal election campaigns to eliminate the fat-cat from elected politics. The skills required for Foreign Service employees should be the highest. Language skills should be prominent, and formal studies formidable. Diplomats should be intimately acquainted with the history and customs of the nations to which they are posted. And they should all have superb negotiating skills as well as polish and manners. Right now we should be diplomatically nudging Kuwait and Saudi Arabia in the direction of republican forms of government The UK is an obvious model they can emulate. Congress has the authority to act in this area and by doing so would reduce the President's imperial powers.

(5) As a last resort we as a nation could change the way we elect the President and substitute the highly visible Congress as the electoral device instead of the invisible Electoral College. If the President were a creature of the legislature, the business of unilateral action would disappear since it would not be possible. This would destroy the myth of the separation of powers, but it is a myth that should be destroyed since it is mischievous. It is mischievous because it allows each branch of the government to pass the buck to the others, often to our national disgrace.

During the Watergate scandal, the question arose as to what the President's powers really were. What was the full breath and extent of Presidential power? The Congress didn't know. The Justice department didn't know and the Office of the President didn't know. The only agency that knew, for sure, was the United States Air Force. That's kind of scary.

...Ted Sudia...

© Copyright 1990
Institute for domestic Tranquility