We are at war, yet no “war” has been formally declared. How, then, are we involved in a prolonged “engagement” and why do we trust our president so much?
This matters. A Constitutional Law class, taught by ACLU attorney and adjunct professor Lynn Stimler, stressed the importance of the war powers of the president and the check of power by the branches of government. Stimler, a staunch advocate of constitutionalism (a government can and should be legally limited in its powers, and that its authority depends on its observing these limitations), taught us:
(Section 8.) The Congress shall have power…To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
Congressman Ron Paul, U.S. House of Representatives quoted James Madison’s statement from 1798 on Oct. 8, 2002: “The Constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the legislature.” This quote is used widely in popular media to question President George W. Bush’s statements that he is the ultimate “decider” about our country’s war decisions.
On September 11, 2001, Richard F. Grimmett, Foreign Affairs, Defense, and Trade Division, commented on this problem of engagement dividing it into two issues in a congressional brief: “One issue concerns the division of war powers between the President and Congress, whether the use of armed forces falls within the purview of the congressional power to declare war and the War Powers Resolution. The other issue is whether Congress concurs in the wisdom of the action.” Did war continue to be wise?
On Nov. 22, 2002, Presidential Compliance was again reviewed, this time regarding Section 3 of the War Powers Resolution, which requires the President “in every possible instance to consult with Congress before introducing U.S. armed forces into situations of hostilities and imminent hostilities, and to continue consultations as long as the armed forces remain.” The report cited loopholes and concerns that “there has been very little consultation with Congress under the Resolution when consultation is defined to mean seeking advice prior to a decision to introduce troops. Presidents have met with congressional leaders after the decision to deploy was made but before commencement of operations.” When we declared our independence from England, it was because a king suspended our own Legislatures and declared “absolute rule.”
The problem occurs when the “strict constructionist”, that is, one who interprets the Constitution to mean just what it says, tries to interpret the current state of affairs regarding the war powers. If an attorney teaches that reinterpreting the Constitution is a bad idea and a student understands that teaching to mean that the system as it exists is sound, how can the current system of absolute power of the current president be anything less than a dictatorship? Why we now feel safe within a system we once rebelled against?
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