Constitutional and legal arrangements should govern war against ISIS (11/19/2015)

The framers of the U.S. Constitution designed the document to “prevent one man from hurrying us into war,” writes David Adler.

By David Adler

As the citizenry contemplates how America can roll back and, indeed, cripple the efforts of ISIS to unleash its horror throughout the civilized world, it’s important to recall the constitutional and legal mechanisms that govern the use of the U.S. military.

The decision to unleash the military might of the nation, either unilaterally or within the context of a request from NATO to contribute military forces, is not vested by the Constitution in the president. Those decisions remain firmly-and exclusively-within the hands of Congress, even if that institution continues to abdicate its most solemn responsibilities and duties.

Many, from Main Street to Wall Street to Pennsylvania Avenue, look to President Obama to make these crucial decisions, but the chief executive lacks the constitutional authority to initiate military hostilities without congressional authorization.

In fact, such power was withheld from the president by the framers of the Constitution who decided, in the 1787 Constitutional Convention, that war power – the authority to initiate military hostilities on behalf of the American people – should be vested solely and exclusively in Congress.

The framers’ decision, which broke radically from the practice of nations around the world to entrust the executive with decisions of war and peace, reflected two fundamental concerns.

First, their familiarity with the predilection of executives to plunge their nations into war railed against the idea of vesting such authority in the newly-minted presidency. The fact that, by the end of the 1787 Convention, delegates had unanimously opposed executive war making, reflected their deep-seated fear of a strong executive who could wield unilateral authority over war and national security matters.

Second, the framers were committed to the establishment of a republican enterprise; for those men, the essence of a republic lay in practice of collective decision making, not unilateral executive decision making.

To the framers, the conjoined wisdom of the many was superior to the judgment of a single person. As a consequence, they designed a constitutional system that embraced discussion and debate among the nation’s representatives before the blood and treasure of the nation was put to risk.

As observed by James Wilson, a delegate from Pennsylvania, who stood second only to James Madison as an architect of the Constitution, “the system is designed to prevent one man from hurrying us into war.”

There was, in the founding era, no dissent from that understanding of the constitutional arrangement for going to war and deploying U.S. military force. For its part, the U.S. Supreme Court, in opinions in 1800, 1801, 1803, 1804 and 1806, affirmed that it is for Congress alone to decide for war. The justices, without dissent in those early cases, held that it is for Congress to decide whether the war should be large or small, on land or water, where troops should be deployed. The Supreme Court also held that the president, as commander in chief, is required to obey instructions and directions from Congress.

Denial of authority to the president to unilaterally plunge the nation into war, means that a request from NATO, for example, to deploy troops or to commit military resources, cannot be met by the president alone. Article V of the North Atlantic Treaty provides that member states are obliged to protect and defend other member states if they are attacked. But that “obligation,” per Article 11 of the treaty, is subject to the “constitutional process” of each nation. Thus, President Obama, if asked by French President Hollande to contribute U.S. forces to defend France – an eminently just and reasonable request – would be required to seek congressional authorization.

There is little doubt that America should be militarily engaged in efforts to eliminate Daesh, but our policies must be determined by Congress which, to this date, remains on the sidelines in the face of a grave national security threat.