THE TRUTH ABOUT WAR POWERS

 

Mark Levin

THE TRUTH ABOUT WAR POWERS -- DECLARING WAR, MAKING WAR, THE CONSTITUTION, AND THE WAR POWERS ACT FACT:  No president, of either party, has accepted the constitutionality of the 1973 War Powers Act.  Every president has viewed it as a violation of separation of powers -- the president's Article II plenary power to run foreign policy and his authority as the commander-in-chief. FACT: The Supreme Court has never ruled on the Act's constitutionality and likely never will.  Indeed, Congress itself is split on the issue, with Democrats supporting Democrat presidents and Republicans supporting Republican presidents.  The War Powers Act is nothing but a political tool used by members of Congress typically against a president of the opposite party -- and their arguments mostly switch from one side to the other depending on who is president.   FACT: The first draft of the Constitution provided that Congress would have the power to MAKE war.  The delegates at the Constitutional Convention rejected that language and changed it to DECLARE war, intentionally watering it down because they did not believe a body with numerous members was institutionally capable of making such decisions. FACT: To declare war does not result in making war, e.g., if Congress were to declare war and a president refused to accept such a declaration, Congress cannot force the commander-in-chief to execute such a war.  Congress declaring war, which it has done a mere 11 times (mostly during World War II) since the nation's founding, is essentially the highest means by which it can proclaim its support for a war.  It is not a condition precedent to making war and never has been. FACT: The only power Congress has to prevent a military operation is the power of the purse.  That said, a president who, as commander-in-chief, has authorized military action will not sign such a bill for it is intended to prevent what he has already commanded.  Therefore, Congress would need a two-thirds majority of both Houses to override his veto.  In other words, a president has broad power to take military action. FACT: Other than the vice president, the president is the only federal official elected by the entirety of the people.  In addition to the institutional impossibility of war powers and decisions in the hands of a multi-member body like Congress, the president is the only official who was elected to, among other things, serve as commander-in-chief.