Few exercises of governmental power trigger more questions about constitutionality and legality, not to mention considerations of wisdom and judgment, than warmaking, particularly unilateral presidential warmaking.
This is for good reason, of course, as American citizens bear the brunt of the toll that war exacts in lives lost and treasuries raided. The twists and turns of warfare are unpredictable. The impact on the economy and, indeed, the future of the country, is clouded and uncertain. This is true, whether the discussion involves the issue of presidential warmaking in Vietnam or Iran.
Recent questions from thoughtful readers of this column coalesce around a common theme: restraining presidential power to take the nation to war. They reflect a keen grasp of the sincere efforts, dating back to the framing of the Constitution, to subject the American Presidency to the rule of law, a task of enduring importance to the maintenance of the republic, but one fraught with challenges and resistance, grounded in political and personal motivations and interests. These good questions deserve more space than is available here, but with apologies, here are some abbreviated responses.
Numerous readers have asked whether presidential usurpation of the war power over time, by presidents of both parties, somehow renders the constitutional violations legal. These questions reflect a working knowledge of the fact that since 1950, Democrats and Republicans in the White House have commenced war without the requisite congressional authorization. Since my own loyalty is to the Constitution rather than party or president, I have for 40 years consistently criticized presidential usurpation of the war power, regardless of who is sitting in the Oval Office.
While the questions raised are rightly placed in a historical context, they have been sparked by President Trump’s war of choice in Iran. The war power, granted exclusively to Congress in the War Clause — Article I, section 8 — cannot be acquired through practice. In 1969, in Powell v. McCormack, Chief Justice Earl Warren wrote: “That an unconstitutional action has been taken before surely does not render that action any less unconstitutional at a later date.” Earlier, Justice Felix Frankfurter, writing for a unanimous Court in 1940, in Inland Waterways Corp. v. Young, echoed a centuries-old principle of Anglo-American jurisprudence: “Illegality cannot attain legitimacy through practice.” To put this in homespun terms, the practice of stealing hubcaps cannot become legal through repetition.
In essence, the Court has repeatedly denied claims that the president can acquire power by a series of usurpations. If it were otherwise, the president might aggrandize all governmental power. Neither Congress nor the judiciary could lawfully restrain the president’s accumulated constitutional powers. Clearly, this practice would scuttle our entire constitutional jurisprudence. Thus, the most recent act of usurpation stands no better than the first.
Let us dive a little deeper. It is unwarranted to conclude that presidential usurpation, indulged by congressional acquiescence or passivity, attains a legal status. Congress may not divest itself of those powers conferred upon it by the Constitution, a necessary predicate of the separation of powers doctrine. Neither congressional abdication nor acquiescence can accomplish a transfer of authority to the president. As the Court has held, harking back to an old axiom of English law, once powers are “granted, they are not lost by being allowed to lie dormant, any more than non-existent powers can be prescripted by an unchallenged exercise.” This principle is true of any constitutional power vested in Congress, whether it is the authority to commence war, write laws or spend taxpayer dollars. If Congress wishes to change the allocation of constitutional powers, it must invoke the amendatory process. Neither the president nor the Congress has authority to void constitutional arrangements ratified by the sovereign people.
Of course, for the past several decades, the congressional power to decide for war and peace has at times been usurped by the executive. In this case, there is a fundamental conflict between the principles of the Constitution and the practice of government. A 17th Century English commentator, observing a similar state of affairs, noted, “the practice of government is but feeble proof of its legality.” In the United States, there is no better illustration of this than in presidential aggrandizement of the war power.
David Adler is president of The Alturas Institute, a non-profit organization created to promote the Constitution, gender equality and civic education. This column is made possible with the support of the South Dakota Humanities Council, South Dakota NewsMedia Association and this newspaper.
Leave a Reply