Keep the President’s
Hands Tied
Executive
war on China would be unconstitutional and disastrous
A WALL
commentary
A House Democrat is pushing a measure that does not seem
democratic. It would let the president bypass Congress’s
constitutional authority and fight China
at will.
Its foremost advocate is Rep. Elaine Luria,
vice-chairman of the House Armed Services Committee, who
has represented Virginia’s 2nd district
(Virginia Beach area) since 2019. She retired as a naval
commander in 2017 after 20 years in the Navy. Presumably
her training emphasized forceful, not peaceful,
solutions to international problems.
We solved the problems of Korea, Vietnam, Afghanistan,
and Iraq neatly, didn’t we? It was easy getting in —
presidents, rather than the unwieldy Congress, made the
decisions to commence firing. It took between three and
20 years to get out, leaving millions dead and countries
in ruin.
Those nations were all smaller than ours. So were all
other presidential foes: Grenada, Panama, Somalia,
Yugoslavia, Libya, etc. China is the world’s most
populous country at 1.4 billion souls, over four times
our population. And it has hundreds — some say
thousands — of nuclear warheads.
Notwithstanding China’s Communist government, America
shows no objection to doing commercial business with the
“People’s Republic.” Is there any humane alternative to
reaching a peaceful political accommodation with it, as
our treaties require?
China claims Taiwan as a province. Taiwan wants
self-rule to continue. The issue can be negotiated,
mediated, arbitrated, compromised, argued in the United
Nations, or amicably settled some other way.
Rep. Luria wrote an op-ed headed “Congress must
untie Biden’s hands on Taiwan” in The Washington
Post last October. She commended as a basis for
legislation the “Taiwan Invasion Prevention Act,”
introduced by Republicans. It would grant the president
authority to fight China “in hours, not the days or
months congressional debate may take.”
She twice noted the Biden administration’s “rock solid”
commitment to a democratic Taiwan. But that was
political rhetoric, not law. She pointed out that U.S.
Special Forces and Marines had been training men there
for at least a year. (Add provocative cruises of U.S.
warships near China. The legality of the training and
cruising is dubious.)
Does the U.S. have an obligation to defend Taiwan? “Yes,
we do, and the Chinese must understand that,” President
George W. Bush said in 2001, Then-Senator
Biden countered in The Washington Post,
“The United States has not been obligated to defend
Taiwan since we abrogated the 1954 mutual defense
treaty…. Under the Constitution, as well as the
provisions of the Taiwan Relations Act, the commitment
of U.S. forces for the defense of Taiwan is a matter the
president should bring to the American people and
Congress.”
“Times have changed,” Luria wrote, failing to explain
how current times brightened the prospect of war with
China.
Constitution and peace in peril
“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,” James Madison wrote Thomas Jefferson. “It has
accordingly with studied care vested the question of war
to the legislature.”
Kings often declared war merely for personal reasons,
like “thirst for military glory, revenge for personal
affronts, ambition …,” John Jay wrote in The
Federalist, 4.
So in an attempt to minimize wars, the Constitution’s
framers permitted Congress alone “to declare war” (i.e.
to initiate it), in Article I, Section 8, Paragraph 11.
As James Wilson, a framer, 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.”
Paradoxically, Wilson was the constitutional
convention’s leading advocate of a one-man executive, as
opposed to a collective executive, which some delegates
wanted. Putting all executive power — including command
of the military — in one person’s hands has enabled each
of the fifteen presidents from F. D. Roosevelt to Biden
to misuse his power by waging unauthorized
warfare. Remember Madison’s comment on executive
affinity for war.
The Korean conflict was Harry Truman’s doing. His overt
waging of war without congressional approval began the
cult of the president as war-maker. Truman, Eisenhower,
Kennedy, L. B. Johnson, and Nixon shared responsibility
for Indochina bloodshed.
As for Afghanistan and Iraq, President Bush Jr. attacked
them after Congress lawlessly handed him its
constitutional authority to declare war. The blank check
for war issued three days after 9/11/2001 did not even
mention Afghanistan. An October 2002 resolution left it
up to Bush whether to attack Iraq (a decision he had
already made).
An enthusiastic supporter of
the Iraq resolution was Joe Biden, then chairman
of the Senate Foreign Relations Committee, whose
judgment congressional advocates of the Taiwan bill
would substitute for their own. As president, Biden has
bombed Syria and Iraq without congressional OK.
Thus with the constitutional war power hanging by a
thread, Democrat Luria and her GOP colleagues aim at
snipping even that, in effect giving the president total
dictatorial power over the life and death of millions of
people.
The Taiwan bill — is it lawful?
The “Taiwan Invasion
Prevention Act” may not guarantee prevention of an
invasion but it comes close to guaranteeing war with
China. It would let the president use armed force to
defend Taiwan against a Chinese attack, seizure of
Taiwan’s territory, or a threat to lives of its
civilians or military.
Introduced last February in the Senate by Rick Scott
(R-FL) and the House of Representatives by Guy
Reschenthaler (R-PA), it reposes in committees. The
House bill has eight cosponsors, all Republicans; the
Senate bill, none.
What does existing law say about delegation of
constitutional power?
“The Congress is not permitted to abdicate or to
transfer to others the essential legislative functions
with which it is vested,” Chief Justice Charles Evans
Hughes wrote, though approving the delegation of
subsidiary rule-making (Schechter Poultry Corporation
v. United States, 1935). He forbade delegation of
“powers which are strictly and exclusively legislative.”
He did not specify those powers. However, the late
Professors Francis D. Wormuth and Edwin B. Firmage, of
the University of Utah political science and law
faculties respectively, wrote the following in To
Chain the Dog of War: The War Power of Congress in
History and Law (1986), pp. 198-199:
“… The framers believed that certain political powers
must be exercised only by Congress if republican
government were to survive. Presumably these could not
be delegated to the President. Distrust of the
executive, prompted and supported by all history, caused
them to vest the power of initiating war exclusively in
the Congress. Hamilton, in The Federalist, and
supporters of the Constitution, in the state
conventions, argued that the system was safe precisely
because the President would never be able to exercise
this power.
“… The philosophy that governs the delegation of power
by Congress precludes legislation authorizing the
President to begin a war… It is impossible for Congress
to enact governing standards for launching future war …
in a future international environment in which
significant details, perhaps even major outlines, change
from month to month or even from day to day….
“If Congress authorizes or mandates a war without regard
to the entire complex of international relations, it is
not determining policy for the future; it is casting
dice.”
* *
* * *
So let’s keep
the president’s hands tied — at least his trigger
finger.
_________________
By Paul W. Lovinger
January
19, 2022
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