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Friday, September 13, 2013

Two Early Unconstitutional Acts of Congress that Laid the Foundation for the 1973 War Powers Resolution and Usurpation of War Powers by The President.

In light of recent developments in Syria and President Obama's kangaroo bouncing between unilaterally declaring war on Syria by firing missiles at it, taking such proposals to Congress, and diplomatic peace talks involving Syria giving up its chemical weapons stock, there has once again arisen the debate of the President's war powers, and just who exactly can take the United States to war.  However, this post is not going to rehash arguments I've already made on the subject.  You can read my opinion on who has America's war powers and when such war powers can be used by consulting this post concerning Pres. Obama's Libyan war.  

Restating my position briefly for those who don't wish to read it, I take the libertarian and constitutional stance that it is the Congress's sole power to declare war, as stated in Article 1 Section Clause 11 of the U.S. Constitution, and that the President is the commander and chief of the armed forces and militia only when called into the actual service of the U.S., as stated in Article 2 Section 2 of the Constitution.  In other words, Congress declares the war, and then the President becomes the commander in chief, in that order only.  Congress has by and large abandoned this responsibility/duty and has unconstitutionally and thus unlawfully altered or amended the Constitution by transferring over a legislative power to the Executive branch via the 1973 War Powers Resolution.  Author and historian Thomas E. Woods has some very fantastic information on this argument.  

However, Thomas Woods, as superb as his writings are concerning America's war powers question, I believe has gotten one thing wrong in his explanation of the constitutional answer for America's war powers quandary.  In the aforementioned writing by Thomas Woods, he asserts the following:

"The president acting alone was authorized only to repel sudden attacks (hence the decision to withhold from him only the power to “declare” war, not to “make” war, which was thought to be a necessary emergency power in case of foreign attack)."

Thomas Woods is indeed correct in his historical knowledge that during the Philadelphia Convention debates over the formation of America's new government that would become our Constitution, the delegates altered the wording of what would become Article 1 Section 8 Clause 11, changing the wording from "make" war to "declare" war.  The reason for this was that some of the delegates felt that the President should be able to repel sudden attacks unilaterally.  The debate notes written by James Madison say the following:

"Mr. BUTLER. The objections agst. the Legislature lie in great degree agst. the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it. Mr. MADISON and Mr. GERRY moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.
Mr. SHARMAN thought it stood very well. The Executive shd. be able to repel and not to commence war. "Make" better than "declare" the latter narrowing the power too much.
Mr. GERRY never expected to hear in a republic a motion to empower the Executive alone to declare war.
Mr. ELSWORTH. there is a material difference between the cases of making war and making peace. It shd. be more easy to get out of war, than into it. War also is a simple and overt declaration. peace attended with intricate & secret negociations.
Mr. MASON was agst. giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "declare" to "make."
On the motion to insert declare-in place of make, it was agreed to. N. H. no. Mas. abst. Cont. no. Pa. ay. Del. ay. Md."  http://avalon.law.yale.edu/18th_century/debates_817.asp

So, yes, some of the delegates felt it was right for the president to be able to unilaterally take command of the armed forces and repel sudden attacks, and most members approved of changing the wording from "make" war to "declare" war concerning Congress's war powers.  Very few believed that the President should be able to declare or make war for the nation.  But this belief by some that the President should be able to repel sudden attacks on the nation didn't make its way into the final product of the Constitution, which was ratified by the people of the states.  Indeed, this unique interpretation of the President's ability to use the armed forces of the nation appears, as far as I'm aware, here and here only.  But did the people believe this too?  This will take more research on my part in discovering such a topic appearing in the ratification convention debates of each state.  For now, though, it must be stated that though this ability of the President to repel attacks may have been the "original intent" or understanding of the President's war powers by some of the delegates to the Philadelphia Convention, It seems somewhat concerning to say it was the understanding of the people as well.  This is because the final product of the Constitution, written by Philadelphia delegate Gouverneur Morris of the Committee of Detail, says nothing of the sort.  Indeed, the Constitution says the exact opposite!  Article 1 Section 8 Clause 15 states "The Congress shall have power...[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrection and repel Invasion."  If the President is not the commander in chief of the armed forces and militia until they are called into actual service of the U.S., and Congress has the sole power to declare war and call forth the militia to repel invasions (AKA attacks), the only two times the armed forces and militia can be called in to protect the nation and the states, then how is it even considered that, aside from the one mention in the Philadelphia Convention notes by James Madison, the President has the ability to be commander in chief of the armed forces and militia during times of sudden attack?  Indeed, an article on the Constitution Project's webpage says the following:

"Indeed, James Madison’s notes of the debate accompanying the change from 'make' to 'declare War' explained that this would 'leav[e] to the Executive the power to repel sudden attacks,' a power that, in any case, may be implied by his oath to 'preserve, protect, and defend the Constitution of the United States.' As Commander in Chief, the President must decide what force is necessary to respond to actual attack.  Historical practice and logic have given meaning to the defensive war power to “repel sudden attacks,” inferred from the Commander in Chief clause."

Historical practice, unfortunately might support this assertion by the authors of this article, but, unfortunately, logic does not, simply because the Constitution says otherwise.  Court cases may deem this ability or "executive power" of the president to command the armed forces during times of sudden attack on the U.S. as constitutional and an actual power of the president, but again, the plain language of the Constitution does not.  Courts and judges, even Supreme Court Judges are fallible human beings, not gods, and thus can, and are at times, if not many times, and are indeed seemingly wrong in their interpretation of the Constitution in this specific instance, precisely because the plain wording of the Constitution, regardless of the intention of a few members of the Philadelphia Convention, and regardless of historical practice says so.  And it says so in Article 1 Section 8 Clause 15.  It is not logical to limit the president in his role of commander in chief to times when the armed forces and militia are called into actual service of the country, plainly and obviously deny him the ability to call them into service in both offensive and defensive situations by placing that power solely in the hands of Congress, but then say he can be commander in chief and call them into service on his own during times of sudden attacks, which are again invasions and are defensive uses of the armed forces and militia, situations that only Congress can call forth the militia according to the Constitution.  In other words, how can the president be denied the ability to call the armed forces and militia into service offensively or defensively according to the plain words of the Constitution, yet be said to be allowed to call them into service during defensive moments, again when the Constitution says the exact opposite?  It doesn't make sense, and such an argument, that the ability to call the armed forces and militia into the service of the nation in times of sudden attack is implied in the "Commander in Chief Clause" is utterly false and is proven so by Article 1 Section 8 Clause 15.  Perhaps this is a blunder by the framers of the Constitution.  I do not know.  But the Constitution says specifically that it is Congress and Congress alone who can call the militia into service of the country during times of invasion, and call the armed forces into service of the nation by declaring war, (indicating that the militia serves as the defensive arm of the nation while the armed forces or national army and navy serve as the offensive arm of the nation), and that the president is not commander in chief until Congress calls them into service.  We need to be very careful when using this argument of implied powers and original intent, because they have been used by all political parties in America to justify unconstitutional acts of the federal government, some of which have been downright oppressive.  It would be much better to base our interpretation of the Constitution on its actual language or wording, and leave implied powers and original intent out of the debate over the federal government's powers.  It doesn't matter what the framers or even the ratifiers of the Constitution intended when such intentions are nowhere to be seen in the Constitution and when such intentions are contradicted by the wording of the Constitution.

Now we get the interesting part of constitutional history, where Congress in 1792 and again in 1795 laid the foundation for the President to assume power to unilaterally control the armed forces and call them into service and send them when and wherever he liked.  In 1792, Congress enacted the Militia Act, which was singed into law by President Washington, a former military leader mind you.  The Militia Act gave the President the power to unilaterally call the militia into service and send it wherever he pleased for purely defensive reasons in times of invasion.  It states:

"Section 1Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states most convenient to the place of danger or scene of action as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper; and in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection."

This act was again reenacted in 1795, which act mirrored the 1792 act, enabling the President to do the same thing.  But again, the Constitution states that Congress and Congress alone shall be the one to call forth the militia during times of invasion, not the President.  So how can Congress pass its sole responsibility and power onto another separate branch of the government, the Executive branch, when we believe in separation of powers and that the Constitution cannot be altered except by the amendment process?  Indeed, the amendment process was added so as to specifically prohibit Congress or any other branch of the federal government to alter the Constitution.  The Constitution was framed by the sovereign people, via their representatives elected to a special constitutional convention, and ratified by the sovereign people via their representatives especially elected to a special ratification convention, which ceased to function after ratification was complete.  If such precautions were made to protect and represent the actual sovereignty of the people via conventions for the framing and ratification of the Constitution, why would Congress or any other branch of the federal government be given the ability to change the Constitution by itself?  That's because, due to the amendment process, neither the legislative, executive, or judicial branch of the federal government was given the ability to alter its own governing document, which was enacted into law by the sovereign people.  But, just like in 1973 with the War Powers Resolution, via the 1792 and 1795 Militia Acts, Congress, the legislative branch of the federal government, unlawfully and unilaterally altered the Constitution by transferring what was dictated by the people as a solely legislative power to the executive branch, by allowing the president to assume the power of calling forth the militia during times in invasion, insurrection, and when the laws needed to be executed.  And what is even more amazing is that these acts were upheld by the Supreme Court, even though these cases concerned different questions about those laws other than whether they were constitutional or not because of the transfer of power from one branch to another.  It might be argued by some that the "Necessary and Proper Clause" allowed Congress to make such laws that transfer power from one branch to another.  But, such cannot be construed by the Necessary and Proper Clause because that clause merely allows Congress and Congress alone to make laws that are necessary and proper for Congress and Congress alone to fulfill its limited scope of powers granted to it in Article 1 Section 8.  That clause doesn't allow Congress to make a law that transfers it legislative power to the executive branch, thus mixing the powers of government and blurring the distinct lines of separation of powers between the three branches of government.

Thus, these two acts of 1792 and 1795 laid the foundation for Congress to abandon its duty of defense of the nation and war powers, making it all the easier for it to do so again in 1973, and making it all the more easier for presidents from all ages of the nation to become usurpers by unconstitutionally assuming power to call forth the armed forces and militia of the nation and unilateral control over them, sending them wherever he pleases whenever he pleases, despite these being legislative powers.  

  







  

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