Congressional Restriction on President’s War-Making — a Pleasant Shock for Court-Watchers

by Mary W Maxwell, LLB

Last night in Congress (January 9, 2020), Representatives voted 224-194 to restrict the president in his future actions against Iran. The concurrent resolution (which is not the same as a bill) was proposed by a freshman congresswoman, Rep Elissa Slotkin, who previously was a CIA analyst and an official in the US Department of Defense. It will presumably be voted on quickly by the Senate.

It “directs the President to terminate the use of United States Armed Forces to engage in hostilities in or against Iran or any part of its government or military …. [without Congress’s say-so] unless such use of the Armed Forces is necessary and appropriate to defend against an imminent armed attack upon the United States.”

House Majority Leader Steny Hoyer said, from the floor:

“We must use this tool of congressional power, or by our silence acquiesce to the growth of the imperial presidency.”

Hmm. Hoyer has been in Congress for 40 years, he is now 80 years old. Where’s he been all my life?  Granted, this is better late than never. Congressional assertion of its absolutely unambiguous power to declare war has been wanting since 1952. I have twice gone to court (as have at least two dozen other Americans) to seek a judicial ruling on this.

The courts washed their hands of it.

Last night’s vote has some connection to two past actions of Congress — the War Powers Act of 1973, regarding Vietnam, and the  2001 AUMF — Authorization for the Use of Military Force. Here at GumshoeNews.com those items have been dealt with, such as in 2017: “Rep Barbara Lee sunsetted the AUMF But the Sun Rose Again,” and in 2018 “The 1973 War Powers Act and the AUMF’s”

For this article, I shall simply quote from my appeal brief in Maxwell v Trump. In the “Factual and Legal Background” I said:

1. Allocation of the War Power in Article I, section 8 of the Constitution

The Framers of the Constitution made a very serious effort to prevent the Executive from having the power to make war. This is evident in James Madison’s notes of the Convention in 1787. Madison and colleagues were not shy about saying that human nature is such that a “king” could start a war for personal reasons or could come under pressure from many sources.

The only pressure the US president should feel is from the people (via their elected representatives), as they will be paying for the war in money and in lives.

Hence, the Framers granted the war-making power solely to the Congress. Article I, section 8 says “The Congress shall have Power… to declare War”. The Framers understood that the President would have authority to repel sudden attacks, but that power is defensive, not offensive. All presidents through Franklin Delano Roosevelt upheld this; they sought Congress’s permission if they wanted to start a war.

An exception was President James Polk, who began military action against Mexico without any legislative authority. The House of Representatives censured him on the ground that the war had been “unnecessarily and unconstitutionally begun by the President of the United States.”

Since that time, several presidents have indulged in war-making in violation of the Constitution. As a result, it is sometimes opined that committing this violation is now acceptable: it is the new “tradition.” However, there is only one legal way to change the Constitution and that is by amendment.

2. Article II’s Protection of the President’s Commander-in-Chief Prerogatives

A president is always the civilian head of the military, per Article II, section 2 of the Constitution. He has wide discretion in battle, including the type of weapons to use, unless Congress legislates a specific limit on his battlefield endeavors.

Treaties which are the law of the land, too, may preclude the use of a certain weapon, or a certain tactic in war. And the 1996 War Crimes Act has criminalized some battle activities on the part of American nationals.

The President bears the responsibility of responding to a sudden attack on the United States; Congress has passed laws about emergency powers of the executive to assist with this, for example, the National Emergencies Act 1976.

3. Weakness of Efforts, by Congress, to Uphold the Constitution

Congress is at fault for allowing the executive’s unconstitutional encroachment on its legislative role in war-making. In a speech at the National Defense University on March 29, 2018, Senator Rand Paul said:

“For some time now, Congress has abdicated its responsibility to declare war. The status quo is that we are at war anywhere and anytime the president says so.”

(a) The War Powers Resolution

After the Vietnam War, some legislators recognized that it is not good to have a division of labor that is undefined. What exactly is the president permitted to do under the rubric of “responding to an attack on the US”? In 1973 Congress passed the War Powers Act (also called the War Powers Resolution).It was vetoed by President Nixon but both Houses overrode the veto.

The statute allows the president to take military action – in emergency — but he must report it to Congress within 48 hours. He can remain in that war for 60 days, hoping for Congress’ approval. If that is not forthcoming, he has a maximum of 30 more days to get the troops out.

According to Section 2 (c) of the 1973 War Powers Act:

“The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

(b) The “AUMF” –the Authorization for the Use of Military Force

On September 14, 2001, a mere three days after Americans were stunned by the destruction of the World Trade Center, President Bush asked for, and got, a joint resolution from Congress, enacted on September 18, as follows:

“That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,  2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

In 2002, Congress produced a further AUMF to cover action in Iraq. President Obama used military force in Libya for more than the 90-day maximum allowed by the War Powers Resolution, and was not called to account for it.

Thus we see that even where Congress has legislated, such as in the War Powers Resolution or the 2001 Authorization for the Use of Military Force, it does not police the executive’s adherence to specific provisions of those laws. Senator Rand Paul warned against a further AUMF that has been put forward as the Kaine-Corker bill. In the aforementioned speech on March 29, 2018, he said:

“Handing war-making power from Congress to the executive branch is not an exercise in congressional power. It is the final and full abandonment of that power. It is wrong, it is unconstitutional, and it should be stopped.”

Nuclear Weapons

Appellant does not advocate a renunciation of nuclear weapons. She asks for constitutional control over a pre-emptive strike (and it is not up to her to create such a policy). As for the use of DU, this is constitutionally in the legislature’s bailiwick.

As Professor Louis Fisher said at a Senate hearing: “The Constitution not only gives Congress the authority but the duty and the responsibility to decide national policy, domestic policy, foreign policy, national security policy. …That is why you are elected.”

While it is still true that only one nation has ever made a nuclear attack on another, the US on Japan in 1945, there are now many countries capable of dropping nuclear bombs and launching nuclear missiles, including Russia, China, and North Korea. Iran is in the process of becoming a member of the nuclear club. There are nuclear submarines in many seas, and there is even a personal nuclear gun called the Davy Crockett.

The amount of damage inflicted by an atomic bomb is vast. People near the explosion would die from the heat or the blast, and others would get sick years later from the radiation. In Hawaii on January 13,2018, the state accidentally sent an alert to the population’s cell phones at 8:07am. It said:

“BALLISTIC MISSILE THREAT INBOUND TO HAWAII. SEEK IMMEDIATE SHELTER. THIS IS NOT A DRILL.” The message caused panic and was not corrected until 38 minutes later.

President Trump castigates Iran and North Korea over their nuclear programs. He has made clear threats about bombing them. And a former secretary of defense, William J. Perry, tweeted on 4 January 2018:  “We are at greater risk of nuclear catastrophe now than we were during the Cold War.”

The Appellant grew up in the Cold War generation. On the day of the Cuban Missile Crisis in 1962, her class was sent home from school without a homework assignment as the teacher assumed there wouldn’t be a “next day.”

Terrorism, Empire, and the Loss of Republicanism

The present unconstitutional Executive arrogation of the war power occurs against a particular background –and to some extent has created that background. We now have what has been called the National Security State.

Particularly since the 9-11 attacks, the Executive has laid claim to ever-increasing powers and these have changed the functioning of the Bill of Rights’ 4th, 5th, and 8th Amendments. The dignity of the citizen is no longer talked up.

The scourge of “terrorism” is talked up all the time. Many Americans accept that torture is “necessary.” Around the world the United States is seen to be an imperial force. Our military pushes the local population aside and builds military bases. By the count of historian Chalmers Johnson, we have over 800 of them. Also, the Defense Department with its huge budget is able to control universities in the US, especially science departments, by way of grants.

Not surprisingly, there is a new quietness of academic criticism of governmental power. This transfer of the Academy’s loyalty has left a serious gap in American culture. Persons who once debated such things as “conflict of interest” are scared of being charged with some newly minted crime.

The constant mention of “enemy attack” or “terrorism” is enough to make the population prefer the safety of weaponry over the safety of critical reasoning.

Appellant contends that one good schoolin’ from the Supreme Court could well set things on a different course

Prior Proceedings

War Powers Cases – Judicial Response

At least 27 war-powers cases have come to US District Courts since 1967. Twelve were filed by or on behalf of soldiers, nine by members of Congress, and six by citizens, such as the present case. These 27 plaintiffs could see that something dreadful is occurring with regard to the Constitution; most also felt that a particular war was wrong. Yet none of their cases have ever been looked at on the merits. All were dismissed as non-justiciable.

The very first of the 27 cases was that of Luftig v. McNamara in 1967, which claimed that the Vietnam War was unconstitutional, on grounds of Article I, section 8.

The District of Columbia Circuit Court affirmed the District Court’s judgment that that the plaintiff’s allegation was not justiciable. Moreover, its wording seems intended to discourage others from coming forward:

“[This] proposition [is] so clear that no discussion or citation of authority is needed. The only purpose to be accomplished by saying this much on the subject is to make it clear to others comparably situated and similarly inclined that resort to the courts is futile, in addition to being wasteful of judicial time, for which there are urgent legitimate demands.”

Two of the 27 cases were found non-justiciable for ripeness, two for mootness, and the other 23 for lack of standing and/or the political question. Of the 27 dismissals by a district court, twenty (not counting the pending cases of Smith and Maxwell) were appealed. Each time, the appellate court reaffirmed the dismissal.

For one case, Massachusetts v. Laird, the US Supreme Court had original jurisdiction since one of the parties was a state. Even there, the case got dismissed on non-justiciability. The Supreme Court had a chance to look at the merits of this important constitutional challenge, regarding Article I, section 8, but it did not do so.

— end of quote from Maxwell v Trump

Mary Maxwell is presently on the campaign trail, seeking the Republican nomination for presidency of the United States, in the primary of only one state, New Hampshire, February 11, 2020.

Here is another candidate: