Turning The Tide ...

AROUND RUMORS OF WAR

By William Westmiller
04/30/99

When the tide turns, everything is very quiet. In balance. There's a hush of anticipation. The tie vote on the Yugoslav air war in the House of Representatives and the subsequent federal complaint against the conduct of the war, may be an historic turning of the tide against Presidential military authority.

By a vote of 213-213, the House this week declined to endorse the air war resolution adopted by the Senate a few hours before NATO bombing began. The tie vote is so critical because it leaves the President with no Congressional authorization for the air war against Yugoslavia. The House rejection of the Senate measure --which only passed by seven votes -- leaves the decision in the hands of the US Supreme Court, which could -- and should -- find that the unilateral military assault instigated by the President was a violation of the US Constitution. It is a rare historic even when two branches of the federal government, legislative and judicial, act to restrain the conduct of the Executive branch. The constitutional questions are clear and momentous.

The Constitution sets very clear restrictions on the President's authority to conduct any military action, circumscriptions that have been largely ignored by both the President and Congress since the second world war. The President only becomes the Commander In Chief of the Armed Forces after the Congress has declared war. The Declaration of War defeated by a nearly unanimous vote of the Representatives.

The founding fathers were rather strict about foreign entanglements and explicitly limited the conditions for the use of military powers. James Madison made it clear that "The Constitution supposed 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." The Constitution implies that a Declaration of War is only proper when the United States is under attack, or in imminent danger of attack. Without a Declaration of War, the President is purely an administrator, not Commander In Chief, of the standing elements of the Armed Forces of the United States. The bottom line is that we don't have a military dictatorship that can exercise military muscle whenever and wherever the President pleases. The requirements of the law and the endorsement of the Congress is required before any President may commit the nation to a military "conflict", or a military "engagement", or any other term of rhetorical art that substitutes for the word "war". If the nation is invaded or assaulted, it's war. No if, ands or buts about it.

In spite of the obfuscations perpetrated by this and several previous Presidents, we are involved in a war whenever we apply military power against any other sovereign country. As much as some people savor the power of an imperial presidency, we don't have one. That is, we don't have one unless the Congress concedes all its power to the President. That is what occurred with the adoption of the War Powers Resolution near the end of the Vietnam War.

In 1973, Congress effectively amended the Constitution by granting the President an unlimited power to conduct any war, without legislative approval, for up to sixty days. The Supreme Court will have to decide both constitutional questions. First, whether the President can conduct any war without a Declaration. Second, whether the Congress can amend the Constitution by a simple majority vote of both houses. The fate of the War Powers Resolution and the military authority of the President will be decided by nine justices, with their sole guide being the intent of the Constitution. An easy decision.

Legal standing to bring the issue to the Supreme Court is exactly what California Representative Tom Campbell had in mind when he forced a vote on the Declaration of War and another resolution to remove all armed troops from the Yugoslav theater within 30 days. The defeat of the second resolution simply expresses the legislator's discomfort at the legal contest that's pending. A lot of representatives want to have their cake, and eat it too. They'd like a Constitution that gives Presidents all the little wars and leaves the big wars to Congress. Then there's a small contingent that actually want an imperial Presidency, unthwarted by petty debates and the cruel limits of a constitutional republic. Tough.

Aside from the proforma resolutions, it's the tie that binds. Understand that the failure of the air war resolution is not subject to a Presidential veto. There is no consent of Congress. The President has lost on both the War Powers Resolution grounds and the Declaration of War. Which is what makes the vote so historic. There is no "controlling legal authority" for any US military involvement in any military action in Europe, NATO or no NATO. Beyond that, the first of the series of resolutions made it clear that Congress will not sit by while the President instigates a ground war in Kosovo. Though it's purely a "sense of the House" resolution, it's a slap at any presidential discretion that the Clinton administration might have preferred.

While several of the resolutions were decided on a partisan basis, the tie vote on the air war could not have happened without the assent of 26 Democrats. Many of them were pained that such a confrontation should occur with a Democrat President. Where were Republicans when Reagan or Bush ignored the Constitution? The best that could be said is that the time comes when the time comes. The time has come. It's very quiet. There's a hush of anticipation. Constitutional power is in the judicial balance. The tide has turned.

©1999, William Westmiller
California Coordinator of the Republican Liberty Caucus
Past Candidate for the Republican Nomination for (24 CA) Congress
Former National Secretary and California Chairman, Libertarian Party
tideturn.c50 ~950 Words
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