In a sad display of Democratic hypocrisy-only cosmetically offset by a smaller dose of the Republican variety-President Bill Clinton is about to trash one of the Constitution's cardinal principles: its solemn reservation to Congress of the power "to declare war."
If this would-be imperial president fulfills his lawless (and foolish) vow to invade Haiti without first seeking a congressional vote of approval, he and his congressional accomplices will have administered a near-fatal blow to the framers' carefully crafted restraints on the President's war-making power.
Already weakened by decades of Cold War strangulation-most recently by Presidents Reagan and Bush-those restraints may not survive this betrayal by their supposed Democratic guardians. Senate Majority Leader George Mitchell of Maine, House Speaker Thomas Foley of Washington and many others have abdicated their constitutional responsibilities and bowed to Bill Clinton's power grab.
The planned 20,000-troop invasion of Haiti would surpass recent Republican rapes of the Constitution in at least one sense: It would be the first time a president has launched an invasion without seeking congressional consent solely because he couldn't get it. It will also apparently be the first time an invasion has been sped up to pre-empt Congress from voting to forbid it.
Worse still, the White House claims power to launch an invasion even if Congress does forbid it. Or, at least, so one anonymous official told The New York Times, " 'Either the [congressional] leadership figures out a way not to have the vote, or we find some compromise, or we lose and go ahead with the invasion anyway.' " Having thus posited a presidential predisposition to commit an impeachable offense, this official blandly added, " 'Politically, there are no great options.' ''
Democrats have long criticized Republican presidents for usurping Congress' exclusive power to send U.S. troops into combat abroad. In 1990, for example, while U.S. troops prepared to expel Iraqi invaders from Kuwait, Mitchell asserted, "The president has no authority, acting alone, to commit the United States to war." Among others who took the same position was then Rep. Leon Panetta (D-Calif.).
But that was when George Bush was president Now Mitchell and White House Chief of Staff Panetta are saying the opposite. So are other liberal Democrats, notably many members of the Congressional Black Caucus, who used to savage Presidents Bush and Reagan for usurping Congress' war powers; now they urge President Clinton to do the same. (Meanwhile, some Republicans who used to be executive-power mavens have flip-flopped, too.)
Difficult questions sometimes arise in seeking to reconcile the framers' allocation of war powers with the exigencies of the modern world. But this is not one of those times. Haiti presents neither a threat to U.S. security, nor an imminent danger to U.S. citizens, nor any other need for tactical speed or surprise that precludes prior congressional authorization; indeed, Clinton has been threatening invasion for more than a year, and has lately been advertising when and where and how the troops will go in. At least President Reagan had a fig leaf to mask the naked unconstitutionally of his 1983 invasion of Grenada: the alleged imminent danger to 595 U.S. medical students there. No such fig leaf in Haiti.
As 10 of the nation's leading constitutional scholars-Stanford's John Hart Ely and Gerald Gunther, Harvard's Laurence Tribe and Abram Chayes, Yale's Harold Koh and Bruce Ackerman, Columbia's Louis Henkin and Lori Damrosch, Duke's William Van Alstyne and Chicago's Philip Kurland-wrote in letter to President Clinton last month:
"[T]he President may not order the United States Armed Forces to make war without first meaningfully consulting with Congress and receiving its affirmative authorization... In our view, those principles, as well as your oath of office, require you to follow President Bush's example in the Persian Gulf War: to seek and obtain Congress's express prior approval before launching a military invasion of Haiti."
This was no act of partisan sabotage. These same professors, mostly liberals, had argued in a 1990 suit that President Bush could not constitutionally go to war against Iraq without first obtaining a congressional vote of approval. Bush later got such a vote, setting (however grudgingly) a salutary precedent upon which Democrats should be seeking to build.
Instead, administration lawyers are cobbling together a collection of meretricious legal rationales for a unilateral presidential invasion of Haiti. The premises are that the operation will encounter little resistance and few casualties; that the United States has been invited in by Haiti's elected president, Jean-Bertrand Aristide (as well as by the United Nations Security Council); and that, in the War Powers Resolution of 1973, Congress recognized a presidential power to send U.S. forces into hostilities for up to 60 days. The conclusion is that this will be not a "war" in the constitutional sense but a mere "police action."
But the framers recognized neither a "little war" nor a "police action" exception to the exclusive power of Congress to authorize sending troops into combat. Besides, Aristide is not an established government inviting the United States in to help put down an insurrection; he is an exile with no toehold on Haitian territory. The United Nations cannot override the Constitution's restraints on presidential power. And the War Powers Resolution expressly disclaims any intent "to alter the constitutional authority of the Congress or of the President."
The Constitution's intent on this point is utterly clear. Determined to deny to the president the war-making power that had been the province of English monarchs, the framers reserved broad powers in the military realm to Congress, including the power "to declare war." And as Ely shows in his 1993 book, War and Responsibility, "The debates, and early practice, establish that this meant that all wars, big or small, 'declared' in so many words or not-most weren't, even then-had to be legislatively authorized....The unequivocal meaning of the original document was that Congress was to start wars, the president to fight them."
While the constitutional convention of 1787 adopted a motion to delete "make war" from an early draft and substitute "declare war," the notes of James Madison- co-sponsor of the motion-show that the sole purposes of this change were to leave room for the president unilaterally "to repel sudden attacks," and to reserve to the president as "Commander in Chief" of the armed forces the power to decide how to conduct military operations that Congress has authorized.
"The Constitution supposes," Madison wrote later, "what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature."
Presidents from George Washington to Dwight Eisenhower understood this far better than former law professor (and draft-ducking Vietnam War protester) Bill Clinton. Washington said in 1793: "The Constitution vests the power of declaring war in Congress; therefore no expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure." And Eisenhower said in 1956: "Until the Congress, which has the constitutional authority, says so... I am not going to order any troops into anything that can be interpreted as war." As Ely shows, "the original understanding was quite consistently honored from the framing until 1950."
It's true that since then President Harry Truman took us into the Korean War in 1950, presidents have repeatedly put troops in harm's way without express congressional consent; that there has been little protest from Congress when things went well; that the War Powers Resolution, which was designed to revive the constitutional restraints on presidential power, has become a monument to congressional abdication; and that the Supreme Court has dodged when asked to enforce the Constitution's war clause.
But Bill Clinton should be shunning unconstitutional precedents like Bush's 1989 invasion of Panama, which posed no serious threat to U.S. security or citizens, and Reagan's 1983 occupation of Grenada, which made a mockery of the rescue-the-medical-students rationale (itself a stretch of the president's power "to repel sudden attacks"). Instead, President Clinton is explicitly celebrating those precedents-and extending them.
While Congress may passively acquiesce-in the recent tradition of (in Ely's words) "letting the president initiate military action while retaining for Congress the option (depending on how the war went) of pointing with pride or viewing with alarm"--this is precisely what the framers sought to prevent by requiring the president to muster a true popular mandate manifested by an affirmative vote of Congress.
What's at stake is not the prerogatives of members of Congress, but the rights of the people. As James Wilson said in a ratification debate: "This system will not hurry us into war. It is calculated to guard against it It will not be in the power of a single man... to involve us in such distress; for the important power of declaring war is vested in the legislature at large."