Panetta Gets Presidential War Powers Wrong – As Do His Critics

Leon Panetta set off a firestorm of controversy last week when he said in reference to a potential attack on Syria, “Our goal would be to seek international permission. And we would come to the Congress and inform you and determine how best to approach this, whether or not we would want to get permission from the Congress.”

Administration officials are now in damage control mode, saying that Panetta was misunderstood, which is surely comforting to those of us who interpreted his statement in the only logical way it could have been understood.

Most of the criticism for these statements has come from conservatives who say that Panetta’s view is unconstitutional. These critics have correctly stated that the United States Congress, not foreign organizations, is constitutionally required to be consulted before war. The problem with a lot of these critics is that this is where their concern for the Constitution ends, because nearly everyone who criticizes Panetta also believes that the president has more expansive power to initiate war than the Constitution actually grants him (which, incidentally, is none).

The framers and ratifiers of the Constitution understood that the executive branch of government has historically been predisposed to favoring war and they therefore sought to limit, or remove completely, the executive’s ability to make war. As James Madison noted, “The Constitution expressly and exclusively vests in the Legislature the power of declaring a state of war (and) the power of raising armies. A delegation of such powers (to the president) would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments.”

Some people cite the War Powers Act of 1973 as the reason why they believe in expansive presidential war powers. This is wrong for a couple reasons. First, the War Powers Act was intended to be a limitation on the president’s ability to make war.

The period between World War II and the early 1970s, when the act was passed, saw presidents’ understanding of their own war powers change, beginning with the Korean War. The War Powers Act was a response to this, as Congress attempted to limit the president’s ability to make war without its approval. The result of this effort, however, was confusing and ineffective legislation that ultimately resulted in presidents being even more emboldened to act contrary to the Constitution.

But even if the War Powers Act were intended to permit the president to send troops into battle without Congressional approval, it still wouldn’t be constitutional for Congress to abdicate the responsibilities for war that were specifically delegated to the legislative branch.

The final argument that is made in support of the constitutionality of the current way we go to war is that Congressional authorizations, like those given to President Bush after 9/11, are tantamount to constitutional declarations of war. The problem with this argument is that a declaration of war, as our founders understood it, was intended to define the parameters of war, after which the president could act as Commander-in-Chief in pursuance of victory. Congress does not have the constitutional right to give authority to the president to pursue war on an open-ended basis without clearly-identified enemies and objectives.

It is easy for people to get worked up when Leon Panetta says that the Obama Administration will seek international permission, but not Congressional authorization, before going to war. It’s a step further to require that all presidents follow the constitutional design for how we as a nation go to war, regardless of the perceived advantages of taking shortcuts.

For further reading on this topic check out:

Tom Woods Q&A on War Powers

Constitutional Scholar Lou Fisher’s Paper on The War Powers Act (PDF)

A Short History of Constitutional & Unconstitutional Wars

What’s So Important About a Declaration of War?

Is Authorizing the Same as Declaring?