Fifty Years Since Korea:
Fifty Years of Presidential Wars

Has a president the constitutional authority
to initiate a conflict?

By Paul W. Lovinger

      A half-century late, atrocities from the Korean war have made the news: first, massacres of civilians by U.S. troops; next, killings of political prisoners without trial by South Korean soldiers and police.  Fifty years have passed since President Truman began what he termed a "police action" to stop "aggression" on June 27, 1950.  It became a major, three-year war, in which North Korea and Communist China were fought to a stalemate.  And it was the first U.S. war in which a president asserted a right to start it.

      Truman took his action without asking Congress for a declaration of war, contrary to what his predecessor, Franklin D. Roosevelt, had done on December 8, 1941.  Truman said a United Nations resolution gave him authority.  But he had ordered armed forces to Korea before the U. N. acted. Moreover, the U.S. never made any agreement with the U.N. to provide armed forces. And anyway, how could Congress delegate away its lawful authority?

      Korea was the first in a score of foreign wars entered by presidents without authorization by Congress.  The total of unauthorized military or paramilitary operations reaches several score more.  The Korean war and later presidents' wars, including Vietnam, took millions of lives, about 113,000 of them American.  Congress's failure to reverse Truman's decision established a routine in which (1) the president assumes dictatorial control over war and peace and (2) Congress submits to the seizure of its exclusive, constitutional power to declare war.

      President Clinton has ordered wars or acts of war in eight countries, including Somalia, Haiti, Bosnia, Afghanistan, and Sudan.  In 1999, he was fighting Yugoslavia and Iraq simultaneously.  He began bombing the Iraqis in 1993 and continues to strike them, and he is intervening in Colombia's civil conflict.  He may have nearly started another Korean war, in June 1994:  Kim Young-Sam, then South Korea's president, told a Korean newspaper that he had talked Clinton out of plans to bomb the north, Insight magazine reported (6-26-00).  Sometimes Clinton has sought support from foreign leaders or international bodies, never obtaining prior approval by the one body that could constitutionally authorize such acts:  Congress.

      Yet nearly all political candidates are silent on a matter that tears at the heart of our constitutional system: presidential war.  Although such autocracy contradicts democracy, few Democrats in politics object.  Nor do many Republican politicos protest that our republic's president has assumed the age-old power of monarchs.

      Neither Governor George W. Bush nor Vice President Albert Gore has addressed the issue of the war power specifically.  However, each has indicated in campaign debates that as president he would send armed forces wherever and whenever he alone decided it was in the interests of the United States to do so.

Founders vs. presidents

      "The Congress shall have power ... To declare war," says the U.S. Constitution (Article I, Section 8).  To declare war means to initiate war.  That was established usage in 1787, when the Constitution was drawn up.  The president is "commander in chief of the army and navy" (Article II, Section 2).

      Alexander Hamilton contrasted the president's military role under the Constitution -- "nothing more than ... first General and Admiral"--with the British king's power to declare war (The Federalist, 69).  "Commander in chief" was not created with the Constitution but was already a century and a half old.  It was always strictly a military rank, without the power to decide war and peace.  Such power has been claimed for the president by modern revisionists, beginning in 1950 with the State Department, which sought to justify Truman's Korean action.

      The founding fathers made abundantly clear that a president could not lawfully commit any hostile act--except to repel sudden invasion--without prior, formal approval by both houses of Congress.  "... Congress alone is constitutionally invested with the power of changing our condition from peace to war," President Thomas Jefferson said (to Congress, 1805).

      James Madison explained:  History demonstrates that the executive is the governmental branch most prone to war.  The Constitution "has accordingly with studied care vested the question of war to the Legislature" (letter to Jefferson, c. 1798).

      Notorious transgressions included Polk's provocation of war with Mexico, McKinley's Philippine war, and many invasions of Latin America.  But not until Truman in 1950 did any official argue that a president had the inherent right to initiate war.

      Few condemned Truman's seizure of congressional authority or considered impeachment.  Commentators praised his "courage."  Some 54,000 American deaths were counted in Korea.

      President Kennedy contemplated atom-bombing Russia over Cuban missiles.  Presidents Kennedy, Johnson, and Nixon produced more than a decade of undeclared conflicts in Vietnam, Laos, and Cambodia, dooming 58,000 Americans.  Usually Congress gave the presidents whatever they asked, including a resolution supporting "peace" in southeast Asia after Johnson had sent bombers to war.  Courts timidly ducked every lawsuit to enforce the Constitution.

      Presidents engaging in unauthorized hostilities after Vietnam included Ford, in Cambodia's islands; Reagan, in El Salvador, Grenada, Lebanon, Libya, Nicaragua, and the Persian Gulf; and Bush in Panama.

      Such actions would not necessarily be legal if authorized by Congress.  Treaties binding on the U.S. ban aggression, require peaceful settlement of international disputes, and prohibit attacks on civilians.  But allowing one man absolute power over war and peace, life and death -- in place of discussion and decision by 435 representatives and 100 senators -- makes war far more likely.  Congress has declared only five general wars and authorized limited war relatively few times.

      The framers designed our Constitution to make unnecessary wars unlikely, though their efforts now appear inadequate.  As James Wilson, a framer of the Constitution, told the Pennsylvania ratifying convention in 1787, "This system will not hurry us into war; it is calculated to guard against it.  It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large. . . ."

The War Powers Resolution

      In 1973, over Nixon's vetoes, Congress ended American combat in Indochina by barring funds for the bombing of Cambodia and also enacted the War Powers Resolution.  It says a president has the constitutional power to introduce armed forces into hostilities or imminent hostilities "only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces" (§ 2, c).  Congressional authorization must be explicit, not inferred from any statute, money appropriation, or treaty (§ 8, a).

      Many think the resolution lets a president start a 60-day war.  But it says, "Nothing ... is intended to alter the constitutional authority of the Congress ... [or grant] any authority to the President..." (§ 8 d).  Indeed a statute cannot alter the Constitution, our supreme law, which authorizes no presidential war of any length.  Chief Justice John Marshall wrote of "the whole powers of war, being by the constitution of the United States vested in Congress" (Talbot vs. Seeman, 1801.  Other federal cases similarly affirmed the exclusive war power of Congress (U.S. vs. Smith, 1806; Dellums vs. Bush, 1990).

      In the absence of congressional authority, the only valid military action by a president would be his repelling of a major attack.  And under the War Powers Resolution, he must observe provisions for consulting with and reporting to Congress and end his fighting within 60 days.  Those provisions are almost academic: The last attack on us came in World War II, a war declared by Congress.

      Presidents have violated the essence of the resolution -- and the Constitution -- through unauthorized invasions, attacks, and secret subversion, at best issuing perfunctory reports.

      None learned the underlying lesson of Korea and Vietnam:  To leave the decision to wage war to a single, fallible mortal is to court disaster.  With nuclear weapons at his fingertips, one misguided or frenzied man can start a holocaust that destroys civilization.

      Early presidents respected the Constitution.  The many violations in our latter history should have prompted us long ago (1) to establish machinery that would prevent presidential wars; and (2) to reconsider whether a one-man executive is compatible with a constitutional republic.

      Instead, many cite those violations as justification for continued dictatorship over war and peace.  But no matter how many constitutional violations are committed, they remain unlawful.  It is a settled Supreme Court doctrine that repetition does not make illegality legal.

      Are the major candidates for president ignorant of what the framers bequeathed us -- or don't they care?  Let us challenge them:  "If elected, will you let Congress decide war and peace, as the Constitution requires?  Or will you dictate those matters?  Will you make war?"

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War and Law League, P.O. Box 42-7237, San Francisco, CA 94142