Tuesday, September 3, 2013

Obama and the Congress: No Clash and No Titans

Our Nation's history has been marked by a progress of fits and starts related to the structure, function, and division of powers of, our federal government.
For instance, the division of powers between State and federal government quickly became an issue when Maryland attempted to impose a state tax on a bank created by the federal government.  When that dispute came before the Supreme Court, that Court concluded that, under our Constitutional scheme, the States lacked the power to tax the federal government's bank.  

In another instance, Congress had crafted a compromise between the disputing Free and Slave States of the Union that averted dissolution of the Union for a period of time and prevented immediate bloodshed.  But when the issue of the power of Free States to make perpetually free from slavery any slave that passed through their borders came to the Supreme Court, the Supreme Court fractured the political solution devised by Congress and concluded that a slave freed in Illinois did not remain free when in Missouri, the slave state next door.

Sometimes, it seems, unsolvable conflicts arise between branches.  The Nation can even be in the throes of National calamity when these conflicts arise.

For example, when Franklin Delano Roosevelt took office after the Crash of 1929, he used the occasion of national calamity and fear and uncertainty to push a progressive agenda of centralized government and entitlement spending.  Many, including Justices of the Supreme Court, found those programs to be without constitutional authorization.

When disputes over those programs came before the Court, the Justices who rejected the notion that the Constitution allowed them issued decisions striking down the programs.  In response, FDR became incensed at the roadblock the Court was becoming to his agenda.  He began to discuss publicly the idea of increasing the number of seats on the Supreme Court.  By doing so, he reasoned, he could appoint a sufficient number of Justices to reconstitute a new majority, one that would sustain the constitutionality of the programs he advanced.  When it seemed such a turn of events might actually occur, the Court made a sea change of direction, giving place to FDR's agenda.  The talk of packing the Court soon faded.

So, today, we face yet another instance in which, by rights, a direct conflict should exist between two of the three branches of the federal government.  This dispute, by the way, will never be resolved by the Supreme Court.  It is one that will be resolved only when either the Congress blinks, or the President does.

You see, President Obama stakes out a position in the dispute over how to respond to the alleged use of chemical weapons in Syria by Syria.  His position is that, as President, he does not need authorization from Congress to act.  Obama is not the first president to have taken that view of the Constitution and its delegation of powers between the branches of the federal government.

This goes to a couple of keenly important questions about the nature of our National government.
It is possible that the President, the Congress and the Supreme Court all have the power to declare war on other nations, and to carry out and direct military action in the name of the United States.  The only way it is possible is either (a) the Constitution says so or (b) it does not matter what the Constitution says.  As it turns out, the Constitution does say something about the power to declare war and to command the military forces of the United States.  And, as it turns out, it may not matter what the Constitution says.

Article I of the Constitution creates the Congress of the United States, gives to the Congress all the legislative powers of the federal government, sets out the rules for its election and operation, and describes with particular detail the specifics of its authority (as well as specific limitations on its authority).  Among the provisions of the Constitution regarding the powers of Congress, there are these:
"The Congress shall have the power ... 
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; 
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;  
To provide and maintain a navy; 
To make rules for the government and regulation of the land and naval forces; 
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; 
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress...." 
"The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States...."
Article II of the Constitution creates the Presidency, gives to the President all the executive powers of the federal government, sets the rules for the election and succession of the President, and describes with particular detail the specifics of the President's authority.

There is no like provision -- that is, one touching on the power to declare war or command military forces -- within Article III of the Constitution.

So, it turns out, the Constitution does have something to say about how the United States makes war.  It turns out, as well, that what the Constitution does not say is that each of the three branches of the federal government, alike, is empowered to declare war.  Nor does it leave doubt about whether the President has the power to declare war.

Only the Congress of the United States BY THE CONSTITUTION'S EXPRESS TERMS has the power to declare war, to raise and support armies and navies and to make rules for their conduct.

The President has a defined but important, limited role in this constitutional scheme:  as Article II states, "The President shall be commander in chief of the Army and Navy of the United States.  And only the President is authorized to act as such.

Now what end is effected by these provisions of the Constitution?  The answer may be more important that the simpler question of whether we should bomb Syria.  The end effected by the Constitution is that the power resides in the Peoples' representatives -- the Congress -- to declare that the United States is at war with another country, and to authorize the undertaking of military hostilities.  No doubt exists in the constitutional language.  That this is so is not debatable.

Presidents (Obama is not the first to take the view set out in the article linked above) find this notion -- that military action can only be authorized by the Congress -- to be too limiting on the power of the President as Commander in Chief.  So, in the case of the Korean and Vietnam conflicts, Presidents Truman, Kennedy and Johnson each directed military action be taken without any declaration of war from Congress.  Congress, in the early '70s, in response to these military adventures, passed over a veto by President Nixon, the War Powers Resolution, which by its terms limits where and how the President may undertake military action.  The Resolution requires consultation with Congress before such action, reporting of such actions to Congress within a limited period after they are taken, and cessation of action unless authorized subsequent to notice to Congress.

So now, with the "red line" drawn by the President having seemingly been crossed by the Assad regime in Syria, we come to the terrible moment when American military forces are called to inflict military action on that regime.  The question, though, is whether President Obama has the requisite authority to commit military action.

Above, as the article indicates, he claims that authority.  He, as Presidents before him, thinks assertion of that power is essential to maintaining the authority of the Presidency.  So the question of whether he has that authority seems resolved to him.  But is the question resolved in the view of the Congress?  Well, if the War Powers Resolution indicates the view of the Congress on the power of the President to commit the United States to military adventures and hostilities, then the question is resolved, but it is resolved against the President's view of the matter.  Nor is the War Powers Resolution the only evidence of a different view held by the Congress.

Consider Senator Obama's view, expressed in an interview with the Boston Globe during his campaign for the Democratic Presidential nomination:
"The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."
No wonder Joe Biden became Obama's eventual running mate.  They shared the same deep conclusion on this question.  Then candidate Biden was questioned by Chris Matthews about his view on the power of the President.  Here's the exchange:
"Chris Matthews: You said that if the United States had launched at attack on Iran without Congressional approval, that would've been an impeachable offense. Do you want to review that comment you made? 

Joe Biden: Absolutely. I want to stand by that comment I made. The reason I made the comment was as a warning. I don't say those things lightly, Chris. you've known me for a long time. I was Chairman of the Judiciary Committee for 17 years. I teach separation of powers in Constitutional law. This is something I know. So I brought a group of Constitutional scholars together to write a piece that I'm going to deliver to the whole United States Senate pointing out that the president HAS NO CONSTITUTIONAL AUTHORITY to take this country to war against a country of 70 million people unless we're attacked or unless there is proof that we are about to be attacked. And if he does, I would move to impeach him. The House obviously has to do that, but I would lead an effort to impeach him. The reason for my doing that -- and I don't say it lightly, I don't say it lightly."
Of course, it is possible that Obama and Biden, as candidates, were immature in their reflection on the necessary scope of presidential authority.  Now, laden with responsibility for the security of the Nation, perhaps, their understanding has matured.  Even so, a mature reflection does not substitute for the language and meaning of the Constitution.  Unless the Constitution does not matter.

It appears that we may learn in the next few weeks just how little the Constitution matters to this administration.