I was doing some local work late last week, and I didn’t get a chance to write on what I consider a pretty huge development in Leon Panetta’s confirmation hearings as the next Secretary of Defense. CNS News has a nice item summarizing arguably the most important portion of Panetta's testimony, in which he stated that it is “very important” but not necessary for a president to get congressional approval to make war. This view, shared by the Obama administration, contradicts the plain language of the Constitution.
Here is one exchange from the hearing:
McCAIN: Does it worry you if the Congress begins to tell the commander-in-chief exactly what he can or cannot do...in any conflict?
PANETTA: Senator, I believe very strongly that the president has the constitutional power as commander in chief to take steps that he believes are necessary to protect this country and to protect our national interests. Obviously, I think it's important for presidents to consult, to have the advice of Congress, but in the end I believe he has the constitutional power to do what he has to do to protect this country......
This question came in the context of a discussion about Libya, and so it is effectively a defense of the Libyan conflict. But it’s a huge stretch to claim that our current action in Libya has anything to do with protecting this country. In fact, I would consider it an assertion that no reasonable person could accept. So if “national interest” can be used to justify that conflict, it can be used to justify any military adventure whatsoever for future presidents.
Later in the hearing, Sen. Jim Webb, D-Va., followed up on McCain’s line of questioning:
WEBB: When you have a situation like [Libya], where the justification is humanitarian, you can see the potential for a very broad definition of what a humanitarian crisis is. And once that decision is made unilaterally by the president, it needs to be subject to the review and the direction of the Congress, in my view.
PANETTA: Senator, it has been my experience both in Congress and as a member of administrations, that while obviously that constitutional power does rest with the president, that once those decisions are made, in order for those decisions to be sustained, that it’s very important to work with the Congress, to seek the best advice and counsel of the Congress, and hopefully to get the Congress’s support for those actions.
"Hopefully?" So now presidents can make war in foreign countries, and "hopefully" the Congress will go along.
Perhaps we should amend the Constitution to say that, because it doesn't say that right now.
Webb finished with a question about the potential involvement of ground troops in Libya, which Panetta said no one supports. And that’s true, so fair enough. But based on Panetta’s – and Obama’s – expansive view of the president’s unilateral power to make war, there is nothing Congress can do to stop the president from putting boots on the ground there tomorrow, or in any future conflict, without the support of Congress.
Once a substantial number of troops are in place, it becomes nearly impossible for Congress to dislodge them. This is true for reasons both political (“what, are you going to cut off funding for the troops in harm’s way?”) and legislative. All the president would need to continue his unilateral war is at least forty-one senators, hoping to spare the president an embarrassing vote.
You might say, “Well, isn’t that the case for all legislation?” No, this is quite different. I am not aware of any provision in the Constitution that gives Congress a negative veto power over matters of war. The president can’t just make war and then bully Congress into going along. At the very least, in order to respect the rule of law, the president has to bully Congress first into giving its approval, and only then make war.
The founders of our nation gave Congress the power to declare war because they worried that executives would be far more likely to go to war if they were given that authority. President Obama is making great strides in the process of turning their intention on its head.