There was a blogger conference call today with Sen. Harry Reid, who (remarkably) didn’t read us a prepared statement but simply took our questions. Bob Geiger blogs about it here. See also Chicago Dyke at Corrente.
In the course of the call, I brought up the apparent buildup to war in Iran, and let him know that y’all (including me) are worried to death that the Senate is going to cave in to Bush’s warmongering. Actually, I think I said “wimp out.” Or something like that. He assured me the Senate would stand up to the White House on this matter, as well as taking on a stronger oversight role in Iraq.
In the Washington Post today, Fred Barbash has quite a good column asking a good question — Why Would Congress Surrender?
At issue is the constitutional law governing the war power of the executive branch, specifically the vastness of the “battlefield” over which President Bush claims inherent authority as commander in chief. Also at issue are all the comparable claims yet to be made by presidents yet unborn, armed with the precedents being set right now.
In these matters, there is no such thing as inaction. In a contest between two branches over separation of powers, silence speaks as powerfully as words. …
… Inaction, indeed, strengthens that precedent. Over time, inaction is taken as acquiescence, a form of approval, and the precedent becomes entrenched until it’s as good as law.
This is precisely what has occurred over the years. Successive decades of congressional acquiescence in the face of executive claims of war power have allowed the law to be settled exclusively by the executive branch. …
… Article II does indeed make the president commander in chief.
But Article I gives Congress not merely the power of the purse. It vests in the House and Senate the authority to “declare war,” to “make rules concerning captures on land and water,” to “provide for the common defense,” to “raise and support Armies,” and to “make rules for the government and regulation of the land and naval forces.” In addition, the Senate advises and consents on important military appointments, which is why Lt. Gen. David Petraeus was on Capitol Hill last week for confirmation as the general in command of U.S. forces in Iraq.
War is a shared responsibility. The records of the 1787 convention at which the Constitution was drafted unquestionably demonstrate that. An early version of Article I, for example, gave Congress the power to “make war.”
The delegates changed the wording to “declare war,” not to remove Congress from the process but to leave the commander in chief the “power to repel sudden attacks,” as James Madison put it. “The executive should be able to repel and not to commence war,” agreed Roger Sherman. In the eyes of some delegates, this limited authority was safe in the hands of a president because “no executive would ever make war but when the nation will support it,” said delegate Pierce Butler.
As I wrote here, there is no way in hell the authors of the Constitution intended to give the President the kind of war powers Bush has assumed. But the parameters of the presidential war powers have been pushed outward for a long time. Until now the chief executives have been reasonably responsible, if only because they were mindful of public opinion. But now we’ve got a Creature in the Oval Office with no sense of responsibility at all, but with some kind of unresolved adolescent resentment against authority other than his own.
For more than two centuries we’ve respected the Constitution as the Law of the Land. Certainly there have been many disagreements about what this or that clause means, or how to interpret a 17th century document in the light of 21st century reality. Even presidents have taken actions that were found to be unconstitutional later on. But I can’t think of another time in our history in which we were threatened by an executive branch that just plain wanted to blow the Constitution off and rule any way they damn well pleased.
This is a precedent Congress must not allow to stand. They must not just try to keep the Creature in check for the next two years until his term expires. Congress’s authorities must be made clear.