What are the limits on the President's war powers?

I recently stumbled across an interesting take on the limits on the U.S. President’s power to make war, which the current president appears to believe are limitless. A certain columnist believes that the war powers are specifically limited by Congress.

The columnist is Gregg Easterbrook and the above quote is from his August 10, 2007 column, “Tuesday Morning Quarterback” on ESPN.Com. Cite .

What say the Dopers, particularly those conservative Republicans who still support the war? (Although to be fair, Democratic presidents also favored expansive war powers.)

I’d be interested in hearing from those posters here who scoff at originalist or textualist interpretations of the constitution. Anyway, it looks like the founders got one thing wrong (from your quote):

Your cite also goes on to say:

I’d like to know where he got that idea. Doesn’t sound right to me:

I’m a bit skeptical. Most of our wars and skirmishes have begun without Congress explicitly authorizing anything, and some of these ended before Congress took up the matter at all.

The proper role seems to be for Congress to authorize continuing operations. That seems to fit well with explicit constitutional mandates and what common sense would dictate would be necessary in a war, with speed of action and sensitivity of operational security both critical.

Letters of marque and privateering were outlawed by the 1856 Paris Declaration Respecting Maritime Law.

The United States, however, was not a signatory.

Our lack of interest in these types of international treaties (ICC, Kyoto, Land Mines…) seems to have a long history.

I’ve been a flip-flopper on this issue. On one hand, we can’t be like in 1800 when it took weeks for messages to arrive from across the sea to debate a war in Congress when nukes are blowing up San Diego.

On the other hand, a President shouldn’t have a protracted war like in Vietnam, or Iraq without the founders’ intent of a declaration of war. IMHO, Iraq was the perfect modern example for a declaration of war. No emergency (obviously, since it took over a year to invade) and plenty of debate.

But again, Congress has only itself to blame. They don’t have the cajones to cut off funding because they fear political backlash? Well, shame on them, because that is their ONLY redress short of impeachment.

Why the hell is the TMQ writing about Bush and the constitution?

ESPN. Sports. Football. I don’t turn to you for political analysis.

Og, I hate Gregg Easterbrook so much.

Honestly, we never seem to have all that much interest in the political fashion of Europe. Go figure.

I agree, but as outrageous as it may sound, Congress did not declare war on North Vietnam. It was never a “war.” It was something friendlier like an “armed conflict” or a “military action.” And Korea was a “police action.”

I suggest “focused embattlement” for Iran.

No. They could rescind their Authorization for Use of Military Force.

What do you think that would accomplish?

That’s not really true. Wars without a declaration of war are a relatively recent development. The War of 1812, Mexican American War, Spanish-American War, WWI, and WWII all had formal declarations of war. Korea was the first foreign war undertaken with out a declaration of war by Congress.

Not really. Do you think our involvement in World War II began when we declared war against the Japanese? Amazingly enough, our sailors, soldiers and airmen at Pearl Harbor shot back.

They shot back at Wake Island, Midway, the Philippines, and Guam as well. These attacks by the Japanese all predated the war declaration.

Furthermore, when FDR made his famous “date which will live in infamy” speech, he asked the Congress for a war declaration that recognized the existence of a war that was already going on:

The actual declaration of war recognizes the existence of that existing war as well:

It is also hardly true that formal declarations of war were required in the past - the First Barbary War was an early example of an instance when Congress approved an action without explicit declaration of war. This was done by guys who actually wrote the Constitution, so I think they’d be sticklers for that if it bothered them.

So historic precedent backs up my view. The executive can act - the military can start shooting or shoot back. The Congress can approve or disapprove by authorizing or rescinding funds to be spent on the operations. Perfectly logical and constitutional.

Exactly, and that is what I’ve been saying they should do for some time now. In fact, I think that might be necessary before funding can be taken away. After all, how can Congress have authorized something and then refused to fund it? Bush could be justified (perhaps) in shifting funds from somewhere else if he thought continuing the war was important enough.

The only problem with that, potentially, is that the AUMF that authorized the invasion of Afghanistan is so broad that it could easily be interpreted as applying to Iraq. Not pre-war Iraq so much, since A-Q was not a presence there, but A-Q is there now. Or at least something that calls itself A-Q, and that even many Democratic Senators agree is A-Q (including Hillary, Obama, and former Senator Edwards).

What, there’s no precedent for that?

I think the Quasi-war against France was. I don’t believe there was a DoW in the Barbary Wars either.

I don’t know. My points was that if the authorization still stands, the president should be able to continue doing it as long as he can shuffle funds around. That would be a lot of shuffling, since the war is very expensive, but it is theoretically possible at least.

Congress could stop the “shuffling” of funds by inserting a line in the military spending bill like:

“No monies in this Act, shall be allocated to military action in the country of Iraq, except as related to the immediate and unconditional withdrawal of said miltary…”

IANAL, so I’m sure it could be drafted better than that, but Congress could make certain that no public money was authorized for continued Iraq combat…

I’ll give you one example that I know of:

Convicted felons may not possess firearms. However, the BATFE is authorized under the law to take petitions from these ex-felons and investigate and potentially restore their firearm rights.

But, since 1992, Congress has prohibited any public monies from being allocated to said effort, so any ex-felon is out of luck by applying under the law to the BATFE…

Why not just revoke the AUMF? That would be a lot easier, and a lot clearer. Besides, an “immediate” withdrawal is physically impossible. And Bush could always veto the spending bill. I don’t think he can veto a cancellation of the AUMF (it should have the same constitutional standing as a declaration of war, which power is reserved to Congress).