Weekly Standard: Did Founders Create War Powers?
Benjamin Kleinerman is the Garwood visiting fellow in the James Madison Program in American Ideals and Institutions at Princeton University. Vincent Phillip Munoz is an associate professor in the department of political science and school of law at the University of Notre Dame.
As military operations continue in Libya without formal congressional authorization, the debate about presidential war powers has resumed. Last week, former secretary of state James A. Baker III and former congressman Lee H. Hamilton jumped into the fray, writing a Washington Post op-ed calling for the passage of the War Powers Consultation Act. A product of the bipartisan National War Powers Commission, both the op-ed and the legislation, while not likely to gain much traction politically, contain fundamental mistakes about the proper functioning of our constitutional system — mistakes that are much more troubling because they arise from a bipartisan consensus. Their proposal departs from the Founding Fathers' constitutional design and, in doing so, reduces governmental accountability, responsibility, and, ultimately, the American people's security.
Baker and Hamilton complain that Congress and the White House are squabbling "over which branch of government has the final authority to send American troops to war." Adopting the tone of those who lament partisan rancor in Congress, they bemoan the lack of coordination and cooperation between branches of government.
Their solution is to mandate consultation between the president and Congress. The president would be legally required (except in a narrow set of circumstances) to confer with a specific group of congressional leaders before committing to combat operations that last or are expected to last more than a week. Congress, in turn, would have to vote on a resolution of approval no later than 30 days after the president had consulted lawmakers.
Although there may well be areas of our national government in which the friction between branches is problematic, war powers is not one of them. The Constitution's framers designed our system to encourage such disputes. Rather than lamenting inter-branch conflict concerning authority over military actions, we ought recognize its benefits.
Why did the Founders want to encourage constitutional conflict in matters of war? Each branch was designed to possess particular capacities and exercise certain virtues. But if left unchecked, each branch might misuse the powers entrusted to it.
The president was designed to lead in foreign affairs. The singularity of his office allows him to act quickly, decisively and, if necessary, with secrecy to protect and advance the nation's security. This is why the Constitution makes the president commander in chief. For the efficient and effective use of power, one person with one voice must be in charge of representing and defending the nation and its interests.
But the concentration of such enormous power in one man's hands is dangerous. While one man can act quickly and decisively, many minds and diverse points of view are necessary for thorough deliberation and democratic representation. Thus the framers gave Congress clear constitutional authority over the declaration of war and over the funding of war.
Our actions in Libya, and the corresponding political conflict it has engendered, evince the virtues of our Constitution. Decisive action, such as the decision to attack Libya when Gadhafi was attacking his own people, is an essential component to a successful foreign policy. But it is not the only component of a successful foreign policy. The wisdom, strategic value, and costs of such ventures must be considered and debated in light of our nation's other obligations and interests. This is the province of Congress. Its size and representative nature allows it to investigate, deliberate, and evaluate. It can ask and debate the tough questions about our foreign policy for which the president does not have time.
The presidency is designed for action. Congress is designed for deliberation. At times, presidential decisiveness will necessarily come into conflict with legislative deliberativeness. This need not trouble us. If a situation calls more for "energy" and speed, the president will likely win. If the situation calls for more deliberation and more circumspection, Congress will likely win. The struggle for constitutional authority, which Baker and Hamilton lament, is actually the healthy exercise of two different constitutional virtues — both of which need a hearing.
Congress must keep an overactive presidency accountable. Similarly, the president must ward off the lethargy endemic to collective institutions that can be disastrous in foreign affairs. Each branch of government must exercise its own powers for our system of government to work well. That will lead to inter-branch conflict.
But conflict, especially constitutional conflict, is a healthy part of our political system. To aim simply for inter-branch cooperation is to misunderstand how the Founding Fathers designed our Constitution to produce an effective and deliberative foreign policy.