Who Provides a Check on the President?
Jim Harrold, January 10, 2020
We are now living in one of those "interesting times" in the American Republic. Since the Trump Administration took out Qassem Soleimani, Republicans have been marketing the narrative that we must support the commander-in-chief, and that to fail to do so is unpatriotic. Some elected Republicans are more extreme than others. Congressman Doug Collins seems to have become a reliable voice of demagoguery. He asserted a few days ago that Democrats are “in love with terrorists.” You're either for us, or you're for the terrorists. That's the logic.
An article today in my hometown newspaper, the Omaha World Herald, caught my interest in this regard.Link: https://drive.google.com/file/d/1XEdUxFRLNGjEz0TNUQ9QHT1s0xVC5UlI/view?usp=sharing.
One member of Nebraska's Congressional delegation is Don Bacon, a man who regularly likes to remind Nebraskans that he is a retired brigadier general. On Twitter, he has called himself the "highest ranking military retiree in Congress." He has some military experience. I am always interested in what Don Bacon has to say since I am also a military retiree, and I also deployed to Iraq. However, I find myself in disagreement with Don Bacon much of the time, and today is no exception.
Don Bacon contends that the vote by the House of Representatives, a nonbinding vote that seeks to inform President Trump that he should seek Congressional approval for war actions against Iran, "sends the wrong message to the ayatollahs." Evidently, Don Bacon believes that the United States Congress must show a united front to the theocratic rulers of the Islamic Republic of Iran. Only this will convince them that we are serious. I disagree. There is another message that we can send Iran, and it is this: the United States is a Constitutional Republic, where Congress not only has the right, but the obligation, to insist on sharing war making powers with the president, any president.
The Founders could not have been more explicit in Article I, Section 8 of the Constitution. Only Congress can declare war. Only Congress can "raise armies." Only Congress can call into service the state militias. And most importantly, Congress possesses a singular power over potential tyrannical impulses of presidents, and that is the "power of the purse." Article I, Section 8, Clause 12 says that Congress has the power: "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years." If one reads the Federalist Papers, there is an even more explicit description of the rationale for this clause. In Federalist Paper #26, Hamilton says this:
"The legislature of the United States will be obliged (emphasis in original), by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not at liberty (emphasis in original) to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to repose in it so improper a confidence."
Okay. Let's pause for a moment here. It is important for Americans to understand our own history, and one reason why is that we need to understand that our Constitution is not some magical, immutable document. I know I run the risk of offending "originalists," but things do change. It was written in a specific period of history and in a specific context. In the eighteenth century, the way a nation went to war was by first declaring its intent (in the Constitution, the job of Congress), and then by "raising an army." This was the model of going to war, even as late as the First World War. The European powers spent more than a month "mobilizing" and declaring war on each other before Germany began actual hostilities in August 1914; the assassination of Archduke Franz Ferdinand was on June 28. On a side-note, perhaps if they had used that time in serious negotiation with each other, the horrors of World War I and the resultant World War II may not have happened.
In the United States, the most bloody fighting of the Civil War was not in its early stages, but only after the Union had raised and trained a large army. The Founders did not envision a world where immediate response to immediate intelligence would be even possible, let alone required. The Founders certainly could not have envisioned a post-World War II world where superpowers possessed weapons of mass destruction. So the idea that Congress must spend days or even weeks in deliberation might seem quaint.
We should also admit that the Founders' notion of a military with a muddled chain of command, split not only between Congress and the president, but between the national and state governments, did not work out well in practice. The "unorganized militia," by the accounts of most historians, was an unmitigated disaster during the war of 1812. Compulsory service in state militias fell apart as an idea early on. The Civil War saw a return to "organized" units of volunteers from each state, and the post Civil War period saw the rise in a movement toward formation of a national guard. Today's version of the official National Guard is a much more nationalized force. The funding for the Air and Army National Guards is almost exclusively from the federal budget, and these units are trained to the same standards as active duty forces. The Guard might like to use the image of "Minutemen" on their patches, but that is not what the National Guard is today. They are professionals who just happen to be part-time professionals. Even that "part time" designation is under strain. Many members of National Guard units have deployed four or five times during the past 18 years.
And the famous "two year funding" clause? If it ever worked, this clause certainly did not work following World War II. It is simply a dead letter, but importantly, this clause has never been repealed by Constitutional Amendment. Theoretically, it could be enforced. It is hard to see how modern military procurement would work if it were enforced. However, the point might not be the "letter" of the Constitution, as much as its "spirit." After all, Congress does not issue "letters of marque and reprisal" to privateers, but that does not mean Congress does not authorize a United States Navy, empowered to fight piracy on the high seas.
The spirit of the Constitution with regard to war powers is simply this: Congress has a role. Congress does retain "the power of the purse." Contrary to what presidents say, Congress has always exercised its prerogative in funding the Department of Defense, and prior to the existence of such a department, the Army and the Navy. President Ford was unable to come to the defense of South Vietnam with air power in 1975, when a coordinated assault by the North Vietnamese and Vietcong was launched, because Congress flatly refused to fund any such deployment. The reduction of the size of the military following the fall of the Berlin Wall and the demise of the Soviet Union was a bipartisan Congressional action. Congress uses funding as its primary tool of control of the executive.
Where we find ourselves now is in a world full of threats that often must be responded to with immediacy. That, however, does not mean that Congress should cede all its power to the Executive. If we go down that path, where does it lead? At what point will presidents simply say that they not only don't care about what Congress has to say about a specific bombing, or deployment, or individual assassination (caveat: I use that word deliberately, because presidents of both parties have done this), the president may simply say he has no use for Congressional priorities on funding. In fact, that has happened, as well. What is to stop a president from re-appropriating non-Defense funds to Defense, and vice-versa. In fact, in building "the Wall," this very thing has occurred under the Trump Administration.
We have a separation-of-powers government. To some extent, the continuous wrangling between presidents and Congress is a healthy exercise in democracy. However, we now have a president in Donald Trump, who seemingly has almost no knowledge of this history, or any history really. His entire business career has been built on the philosophy of "my way or the highway." I cannot imagine a scenario where Donald Trump would have lasted as CEO of a publicly-traded corporation. Only in the business of sole-proprietorships can one get away with the strong-arming, vendor-stiffing, contract-breaking dealings Mr. Trump is famous for. In the national and international arenas, however, these business skills do not translate. Among nations, there must be room for actual negotiation. Within the United States, there must be room for compromise, or at least the acknowledgment that other branches of government have prerogatives.
If Congressman Don Bacon is wrong about the role of Congress, he is very wrong on the role of the military. If you read the Omaha World Herald article, you will note that Don Bacon expresses confidence that the military will not carry out illegal orders. If ordered to bomb cultural sites in Iran, the congressman says that military officers will simply refuse because that is how we are trained. This is a nice theory. I also was trained to not obey illegal orders. The problem with this theory is that it is harder to carry out in practice. The reason is that disobeying illegal orders requires interpretation and it requires individual initiative.
Abu Ghraib prison is a stark reminder of this. Military personnel did, in fact, abuse prisoners at this facility. They did, in fact, disobey written Army regulations and U.S. law that prohibited them from doing so. And several of the military members at Abu Ghraib were tried and convicted. This fact is to the Army's credit. However, we must not forget that the official position of the U.S. Government at the time was that "enhanced interrogation" was legal. We expected that young enlisted soldiers (many of whom were in the National Guard, by the way) should obey orders from the Army, that they should comply with their annual and perhaps perfunctory training on the "Laws of Armed Conflict." We expected this while John Yoo was creating legal justifications for enhanced interrogation on behalf of President Bush and Vice President Cheney.
So, let me summarize Congressman Don Bacon's position here. First, he says that Congress resolving to insert itself into President Trump's war powers "sends the wrong message to the ayatollahs." What message is that? The message I read is that the United States is a constitutional republic with separation of powers. Unlike Iran, we have no officeholder called "Supreme Leader," whose word is law. He then goes on to say that he fully expects military officers to disobey illegal orders, because that is how we are trained. In other words, Congress, which has an explicit, Constitutional role in the Nation's war powers, should simply go along with the president. But....if the powers of the president must be held in check, this check is supposed to come from individual military officers.
Sorry, Congressman Don Bacon, I am just not buying it. Our nation is strong enough to allow public and open debate in Congress. It is strong enough to allow citizens to voice their dissent. Weak theocracies might need "Supreme Leaders," but the United States does not.
"The legislature of the United States will be obliged (emphasis in original), by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not at liberty (emphasis in original) to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to repose in it so improper a confidence."
Okay. Let's pause for a moment here. It is important for Americans to understand our own history, and one reason why is that we need to understand that our Constitution is not some magical, immutable document. I know I run the risk of offending "originalists," but things do change. It was written in a specific period of history and in a specific context. In the eighteenth century, the way a nation went to war was by first declaring its intent (in the Constitution, the job of Congress), and then by "raising an army." This was the model of going to war, even as late as the First World War. The European powers spent more than a month "mobilizing" and declaring war on each other before Germany began actual hostilities in August 1914; the assassination of Archduke Franz Ferdinand was on June 28. On a side-note, perhaps if they had used that time in serious negotiation with each other, the horrors of World War I and the resultant World War II may not have happened.
In the United States, the most bloody fighting of the Civil War was not in its early stages, but only after the Union had raised and trained a large army. The Founders did not envision a world where immediate response to immediate intelligence would be even possible, let alone required. The Founders certainly could not have envisioned a post-World War II world where superpowers possessed weapons of mass destruction. So the idea that Congress must spend days or even weeks in deliberation might seem quaint.
We should also admit that the Founders' notion of a military with a muddled chain of command, split not only between Congress and the president, but between the national and state governments, did not work out well in practice. The "unorganized militia," by the accounts of most historians, was an unmitigated disaster during the war of 1812. Compulsory service in state militias fell apart as an idea early on. The Civil War saw a return to "organized" units of volunteers from each state, and the post Civil War period saw the rise in a movement toward formation of a national guard. Today's version of the official National Guard is a much more nationalized force. The funding for the Air and Army National Guards is almost exclusively from the federal budget, and these units are trained to the same standards as active duty forces. The Guard might like to use the image of "Minutemen" on their patches, but that is not what the National Guard is today. They are professionals who just happen to be part-time professionals. Even that "part time" designation is under strain. Many members of National Guard units have deployed four or five times during the past 18 years.
And the famous "two year funding" clause? If it ever worked, this clause certainly did not work following World War II. It is simply a dead letter, but importantly, this clause has never been repealed by Constitutional Amendment. Theoretically, it could be enforced. It is hard to see how modern military procurement would work if it were enforced. However, the point might not be the "letter" of the Constitution, as much as its "spirit." After all, Congress does not issue "letters of marque and reprisal" to privateers, but that does not mean Congress does not authorize a United States Navy, empowered to fight piracy on the high seas.
The spirit of the Constitution with regard to war powers is simply this: Congress has a role. Congress does retain "the power of the purse." Contrary to what presidents say, Congress has always exercised its prerogative in funding the Department of Defense, and prior to the existence of such a department, the Army and the Navy. President Ford was unable to come to the defense of South Vietnam with air power in 1975, when a coordinated assault by the North Vietnamese and Vietcong was launched, because Congress flatly refused to fund any such deployment. The reduction of the size of the military following the fall of the Berlin Wall and the demise of the Soviet Union was a bipartisan Congressional action. Congress uses funding as its primary tool of control of the executive.
Where we find ourselves now is in a world full of threats that often must be responded to with immediacy. That, however, does not mean that Congress should cede all its power to the Executive. If we go down that path, where does it lead? At what point will presidents simply say that they not only don't care about what Congress has to say about a specific bombing, or deployment, or individual assassination (caveat: I use that word deliberately, because presidents of both parties have done this), the president may simply say he has no use for Congressional priorities on funding. In fact, that has happened, as well. What is to stop a president from re-appropriating non-Defense funds to Defense, and vice-versa. In fact, in building "the Wall," this very thing has occurred under the Trump Administration.
We have a separation-of-powers government. To some extent, the continuous wrangling between presidents and Congress is a healthy exercise in democracy. However, we now have a president in Donald Trump, who seemingly has almost no knowledge of this history, or any history really. His entire business career has been built on the philosophy of "my way or the highway." I cannot imagine a scenario where Donald Trump would have lasted as CEO of a publicly-traded corporation. Only in the business of sole-proprietorships can one get away with the strong-arming, vendor-stiffing, contract-breaking dealings Mr. Trump is famous for. In the national and international arenas, however, these business skills do not translate. Among nations, there must be room for actual negotiation. Within the United States, there must be room for compromise, or at least the acknowledgment that other branches of government have prerogatives.
If Congressman Don Bacon is wrong about the role of Congress, he is very wrong on the role of the military. If you read the Omaha World Herald article, you will note that Don Bacon expresses confidence that the military will not carry out illegal orders. If ordered to bomb cultural sites in Iran, the congressman says that military officers will simply refuse because that is how we are trained. This is a nice theory. I also was trained to not obey illegal orders. The problem with this theory is that it is harder to carry out in practice. The reason is that disobeying illegal orders requires interpretation and it requires individual initiative.
Abu Ghraib prison is a stark reminder of this. Military personnel did, in fact, abuse prisoners at this facility. They did, in fact, disobey written Army regulations and U.S. law that prohibited them from doing so. And several of the military members at Abu Ghraib were tried and convicted. This fact is to the Army's credit. However, we must not forget that the official position of the U.S. Government at the time was that "enhanced interrogation" was legal. We expected that young enlisted soldiers (many of whom were in the National Guard, by the way) should obey orders from the Army, that they should comply with their annual and perhaps perfunctory training on the "Laws of Armed Conflict." We expected this while John Yoo was creating legal justifications for enhanced interrogation on behalf of President Bush and Vice President Cheney.
So, let me summarize Congressman Don Bacon's position here. First, he says that Congress resolving to insert itself into President Trump's war powers "sends the wrong message to the ayatollahs." What message is that? The message I read is that the United States is a constitutional republic with separation of powers. Unlike Iran, we have no officeholder called "Supreme Leader," whose word is law. He then goes on to say that he fully expects military officers to disobey illegal orders, because that is how we are trained. In other words, Congress, which has an explicit, Constitutional role in the Nation's war powers, should simply go along with the president. But....if the powers of the president must be held in check, this check is supposed to come from individual military officers.
Sorry, Congressman Don Bacon, I am just not buying it. Our nation is strong enough to allow public and open debate in Congress. It is strong enough to allow citizens to voice their dissent. Weak theocracies might need "Supreme Leaders," but the United States does not.
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