The Baker-Christopher Report: A Bipartisan Presidential Power Grab

By Patricia Lee Sharpe

The previous War Powers Act, that of 1973, it’s said, was observed more in the breach than in the observance, so two distinguished political gentlemen have conspired to rewrite the law so that presidents can do largely the same thing, but legally.

The better course would have been to figure out how presidents can be forced to obey the laws which they swear to faithfully execute. That’s not the idea here.

We who prize representative democracy, the rule of law and the U.S. Constitution generally are evidently expected to give Messers Baker and Christopher a hearty round of applause for their proposed coup, and Congress is expected to roll over and cede yet more power to the Presidency. Just yesterday a fear-ridden Congress, including a good number of spineless Democrats, legalized the president’s illegal wire-tapping and spared colluding corporations the time and expense of defending law suits by citizens whose privacy had been invaded. So I, for one, have little expectation that Congress will insist on a restoration of its own power to declare war and to fund wars only after thorough and skeptical debate.

No. The respectful reception that this new proposal has received is wearily consistent with the inclination to recreate the U.S. Presidency as nothing less than an all powerful Czar.

Nor should we be surprised that the War Powers report is authored as it is. Although James A. Baker II and Warren Christopher are being hailed as elder statesmen of the Republican and Democratic stripe, respectively, no one seems to be pointing out the implications of the fact that they are both ex-Secretaries of State.

In short, they are Presidents’ Men! Their goal is simple and obvious: to facilitate the continued enlargement and enhancement of executive power.

A war-inclined executive likes to cow Congress by claiming superior knowledge and by insisting that sharing that knowledge and allowing debate about its implications would imperil the nation. Although the present administration has been even more secretive than most, its bellicose foreign policy has left the U.S. infinitely weaker than it was in 2000. Yet Congress, for some reason, has failed to draw the obvious conclusion: our representatives certainly couldn’t do worse, and might do a lot better, were Congress as a whole to demand the relevant info and insist on full debate before forces are committed and not evade the responsibility by pretending that we aren’t really going to “war.” (There would, of course, be exceptions for sudden massive attack (not for an act of terrorism, however awful) and honestly imminent danger—but Congressional approval would have to come in a week or two, say, not three long months, which is plenty of time for a duplicitous administration to create a hard-to-escape fait accompli. This provision would have to be very carefully drawn to permit some flexibility without self-defeating loopholes.) As for those who worry that Congress will dillydally in superficial grandstanding while the fate of the nation hangs in the balance, it’s hard to believe that a Congress that has been so precipitous in ratifying the Executive's more violent impulses would be dilatory in performing its Constitutional duty. For that matter, maybe what we need is a little more debate, a little more delay, a little more diplomacy, in the conduct of foreign policy, not this knee-jerk yes-yes-yes to shock-and-awe demonstrations. It should be harder, not easier, for the big boys with the big rockets to play Fourth of July with human lives.

That ex-Secretaries of State are conniving at making it easier to make war suggests how far we have wandered down the self-destructive path of prioritizing the military response to international challenges.

When all foreign policy is so massively militarized by a President who loves the role of Commander-in-Chief, the death of democracy is in the air.

Comments

[Alfred W. Blumrosen]

The following is available for downloading at www.warpower.us.

Baker-Christopher Proposal of 2008 Violates the Constitutional Requirement that Congress Declare War.
Alfred W. Blumrosen and Steven M. Blumrosen
James Baker, Warren Christopher and their War Powers Commission, along with the drafters of the War Powers Resolution of 1973, and the lower federal courts have erroneously assumed that “war powers” are shared between Congress and the President. Baker and Christopher introduced their proposal in The New York Times on July 8, 2008, stating bluntly “Our constitution ambiguously divides war powers between the president (who is the commander in chief) and Congress (who has the power of the purse and the power to declare war).” As a matter of constitutional law, this statement is wrong.
A. THE CONSTITUTIONAL REQUIREMENTS ARE CLEAR.
1. Constitutional principles
There was no ambiguity in the Constitution as to which branch of government could decide to take the nation to war. To the contrary, in the opening days of the Constitutional Convention, delegates made clear that the president could not decide to take the nation to war. This issue was first addressed on June 1, 1787, when the Convention began to consider Virginia’s plan to strengthen the federal government. The Framers first adopted the separation of powers concept espoused by the leading political theorists – Locke, Montesquieu and Blackstone. They had written that declaring and making war were “executive powers” of monarchs like the Kings in France and England.
The Framers quickly divided the government they proposed into executive, legislative and judicial branches. The Virginia plan introduced on May 29 gave the President “executive powers” of the Congress under the Articles, without defining what those powers included.
On June 1, Charles Pinckney, delegate from South Carolina, feared that the term “executive powers” would give the President the power of “peace and war.” Pinckney
“…was afraid the Executive power of [the existing] Congress might extend to peace & war & etc., which would render the Executive a monarchy, of the worst kind, to wit and elective one.”
Pinckney’s fear of presidential power of “peace and war” was shared by all who spoke to the issue.
The Framers had solid reasons to insist that the president not be granted the power of war that was characteristic of monarchies. The next day, Delegate John Dickinson explained:
“A limited Monarchy he considered as one of the best Governments in the world…. A limited monarchy however was out of the question. The spirit of the times--the state of our affairs, forbade the experiment, if it were desireable.”
That spirit had been encouraged by Tom Paine’s Common Sense that had influenced many colonists who opted for revolution in 1776. Historian Joseph Ellis, in 2001 described that “spirit” of the times:
“At the very core of the revolutionary legacy...was a virulent hatred of monarchy and an inveterate suspicion of any consolidated version of political authority. A major tenet of the American Revolution… was that all kings, and not just George III, were inherently evil. The very notion of a republican king was a repudiation of the spirit of ’76 and a contradiction in terms.”
To make doubly clear that the President would not have the power to make war, the convention not only deleted the clause challenged by Pinckney but also determined that “making war” was not to be an “executive power” of the President. It was a “legislative power” to be exercised by Congress.
On August 6, 1787, the Convention’s Committee on Detail reported to the Convention the conclusion that Congress should have the power to “make war.” The Committee’s report was considered by the Convention on August 17.
Pierce Butler of South Carolina was the only delegate who sought to vest the power to “make war” in the President. Elbridge Gerry (Massachusetts) responded,
“I never expected to hear in a republic a motion to empower the executive alone to declare war.”
Butler’s view was not further considered. The Convention voted to allow the president to repel a “sudden attack” without first seeking an action by Congress by replacing the word “make” with “declare”. George Mason, George Washington’s friend, neighbor and advisor, was
“..against giving the power of war to the Executive, because it is not safely to be trusted with it. He preferred ‘declare’ over ‘make’.”
Nothing in the debates suggests that the replacement of “make” with “declare” would reduce the power of Congress to decide whether to take the nation to war. Assigning such a crucial decision to a Congress that included the House of Representatives – the only body directly elected by the people – reflected the sentiment of Declaration of Independence, the anti-monarchial attitudes of the people, and the deliberations of June 1.
The Framers expected that the decision for war would be made by the vote of each member of Congress “in the face of their constituents,” thus assuring that members of the House would be accountable to voters at the next election. Opponents of the Constitution – the “anti federalists” – did not identify a risk that a President could take the nation to war in their analysis of its defects.
Thus, there was no ambiguity or difference within the Federal Convention or the ratifying conventions that the authority to take the nation to war rested in the Congress. Alexander Hamilton explained in Federalist #26:
... [The president’s] authority would ...amount to nothing more than the supreme command and direction of the military and naval forces, while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution.... would appertain to the legislature.” [Emphasis added]
2. Early practice under the Constitution confirmed congressional power to declare and limit war.
Practice of the government under the Constitution demonstrated how those who first administered its provisions viewed its requirements. For example, during the “quasi war” with France, Congress specified that the President could order the navy to capture French ships in territorial waters and on the high seas – but not elsewhere – and to limit the time of presidential authority. The Supreme Court held that Congress had full power to define and limit the scope of military action.
The leading commentator on the Constitution in the 1830’s was Justice Joseph Story. His view was:
“...the power of declaring war… is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation. War, in its best estate, never fails to impose upon the people the most burthensome taxes, and personal sufferings…. Indeed, the history of republics has but too fatally proved that they are too ambitious of military fame and conquest, and too easily devoted to the views of demagogues, who flatter their pride, and betray their interests. It should therefore be difficult in a republic to declare war; but not to make peace.”

3. Federal courts never considered the June 1 understanding that gave Congress authority over war.
The careful discussion of June 1, 1787 confining the power to “make war” to Congress was not considered at all in the leading case of Massachusetts v. Laird in 1971[Vietnam War]. This decision upheld the Congressional transfer to the President of its authority to take the nation to war. The Laird court wrote that “the Congress was given the power to declare war and nothing was said about undeclared hostilities.” [Emphasis added] The underlined statement was not true. What the court called “Undeclared wars” was fully encompassed within the concept of “imperfect” or “limited” wars that had been described by the Supreme Court in connection with the “quasi war” with France.
Ignoring these discussions enabled the Laird court to invent a joint authority between President and Congress to initiate war even though the Founders rejected such an approach. Compounding this error, Laird was followed by Doe v. Bush (2003) concerning the Iraq war as were other lower Federal courts. The Supreme Court has never reviewed these decisions. No US Court has examined the June 1 discussion at the Convention concerning the power to declare war.
The “authorization for the use of military force” by the President in Vietnam and the Iraq wars defeated the intention of the Founders and the early practices of the government. Since World War II, presidents have taken us into four major wars – Korea, Vietnam, and the Iraq wars. If members of Congress had assumed their political and legal responsibility to their constituents, they would have made these decisions themselves. By giving the authority to the president, congress avoided the necessity to scrutinize proposals for war in light of their personal reelection prospects. More attention by congress would require presidents to present the reasons for war in greater detail. Greater clarity may lead the nation to sharpen its attention to the details of going to war, and the congress to shape presidential authority with attention to the time, place and manner of a limited war. This would conform to the requirements of the Constitution and to the practices in the early years under the Constitution.
We have learned that informal consultation between presidents and congress is not enough. Such discussions took place in September and October, 2002, concerning Iraq. The decision to go to war was resolved by agreement between the national political party leaders before the Congressional debate was commenced!
B. BAKER-CHRISTOPHER PROPOSAL AND CURRENT EXECUTIVE POLICY VIOLATE THESE CONSTITUTIONAL PRECEPTS.
1. Reversing the Constitutional order.
For wars the Baker-Christopher Commission considers “significant,” the president may conduct hostilities for a month while Congress – with little time to hold hearings on the merits – votes on a resolution favoring his taking the nation to war. If Congress does not vote in favor of the war, the president may continue hostilities and Congress may take a second vote to disapprove his actions. If the second vote disapproves the war, the president may veto it. It takes a 2/3rd vote of each house to overcome the veto. Thus, if the president has 1/3 plus one support in either house of congress, the veto will stand and he can continue the war.
The result is legalistic jujitsu – reversing the positions of the president and Congress. Under the Constitution, Congress has the power to declare war by majority vote in both houses approved by the president. Under Baker-Christopher, that power to commence and conduct war would be assigned to a president who may have less than majority support. By the time the Baker-Christopher plan has played out, we will have been at war for months. This is more than a contest between the president and congress. When the president can maintain a war against the will of a majority of congress, the Constitution is violated and democracy is endangered.
2. Authorizing preventive war.
The Baker-Christopher Commission’s plan allows presidents to conduct a laundry list of wars – “preventive war,” “retaliatory war,” wars against nations that support terrorism, wars against any other nation we may attack hoping to defeat the enemy within a week – with no required Congressional approval.
This approach usurps the Congressional obligation to determine the circumstances under which the president may engage in hostile military action. “Preventive War,” even one the president hopes to end within seven days, risks evasion of Congressional authority. Its promulgation in the National Security Strategy of 2002 and 2006 has sullied the perception of the US abroad. President Obama, who must present his National Security Strategy soon after taking office, should question the use of preventive war without first seeking a Congressional judgment concerning its necessity. Congressional power to declare war includes the authority to determine when a war is justified.
C. CONCLUSION
Only the Supreme Court can fully resolve Constitutional issues concerning Presidential powers.
The assertion by many presidential administrations that the President has authority independent of Congress to use military force because he has done so in the past is without merit. Nor may Congress and the President jointly approve a reallocation of the powers mandated by the Constitution. The “Authorization for the Use of Military force by the President” that has been argued as equivalent to a declaration of war by Congress is precisely the kind of shift in Constitutional authority that has been condemned by the Supreme Court.
Baker-Christopher makes some recommendations for consultation between the President and Congress that are sound; but its procedures will hurt us when the next president wants to take us to war. The adoption by Congress of procedures proposed in Baker-Christopher will violate separation of powers principles established in 1787 by the founders precisely to protect us from Presidential decisions to take us to war. We need to enforce the procedure adopted by the framers. In that procedure Congress by roll-call vote defines the time, place, and manner of using military force, its objective, and a date when Presidential authority expires.