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BY
ALLAN C. BROWNFELD
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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 came to making war, it was Congress which was given the power to do so.
The power of the executive has been growing in recent years, regardless of which party was in power. Under President George W.Bush, what some called a new “imperial presidency”was said to have emerged. 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, “I’ve got a pen and I’ve got a phone—-and I can use that pen to sign executive orders and take executive actions and administrative action that move the ball forward.”
This philosophy 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 presidents of both parties have used. In 2011, President Obama said he was free to bomb Libya because the action was led by NATO, did not involve “sustained fighting or active exchanges of fire” and so did not meet the definition of “hostilities.” Ptresident 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: “...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.”
The Congress has finally attempted to reclaim its warmaking 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 Kashoggi last fall. It brought along a number of 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 warmaking power which the Constitution specifically bestows 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 warmaking 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 are now confronted with a situation in which Congress, which has the power to make war, is calling upon the executive to end war in Yemen, which Congress never approved and now opposes. And the President, who has no constiutiinal power to declare war, has vetoed this legislation. What, one wonders, is really left of the intent of the Framers when it comes to making war.
The strange situation we are in was captured by Daniel Larison 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 that had once been assumed.
Today, with people calling themselves “conservative” in power, we see exactly what Calhoun had in mind—-as claims of executive power—-in Yemen and beyond—-continue to grow.
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