Stephen Gottlieb: War And The Separation Of Powers

Sep 10, 2013

In 1950 Harry Truman sent troops to Korea without consulting Congress. Republican criticism did not withstand American hostility to Communism and American nostalgia for give ‘em hell Harry. It became a precedent.

Lyndon Johnson sent troops to Vietnam without a declaration of war. The Gulf of Tonkin Resolution supported him, though it was based on fraudulent information about events that did not happen. Courts said budgetary resolutions were enough.

Nixon didn’t ask congressional permission to bomb Laos and Cambodia –he tried to keep it secret from Congress and the American people. The Cambodians knew that many people were being killed by the bombs, and the bombing may have helped the vicious Khmer Rouge take over the country.

Reagan supported a war in Central America in the very teeth of Congressional action to stop it.

Now two successive presidents have submitted to Congress their decisions favoring acts of war. That is remarkable, even though we know that the so-called evidence of Iraqi weapons of mass destruction was nonsense. Because he didn’t act on his own to bomb Syria over the use of chemical weapons, some in both parties have castigated the president for weakness.

Listeners won’t be surprised that I don’t have much confidence in this Congress. And the use of chemical and other weapons of mass destruction is a grave crime that deserves punishment. But the Constitution gives Congress the power of war and peace. And whatever the outcome, I am very glad that presidents have begun to notice.

In the 90s, I attended a meeting in Rochester at which several prominent political scientists urged that the U.S. move toward a political system more like parliamentary democracies, by removing the midterm elections. That would have given Obama more power during his first term although he lost the House even in a presidential election year – the result of partisan gerrymandering that should be blocked by a Court with any integrity.

But most of us shuddered. Could the American political system function decently if we weakened the checks and balances on the president? We’ve talked about the imperial presidency for decades. Without congressional authorization, presidents have unseated democratically elected leaders, committed us to wars that have done a great deal of damage both at home and abroad, killed and maimed our soldiers as well as civilians abroad caught in war zones, wars that then seeded whirlwinds that have continued to complicate our security. And presidents have ignored legal limits in statutes that barred them from gathering information about those of us who have committed no crimes, sometimes merely demonstrating against the Administration’s policies as we have every democratic and constitutional right to do. I commented several weeks ago that we need “enforceable rules for the use of the information government collects” because we are not going to succeed in stopping the government, under the presidents’ directions, from collecting that information.

If we enforce constitutional rules to limit presidential power only when we dislike presidential decisions, and insist on “strong” presidents with independent power when we like their policies, then the constitutional principle is reduced to ordinary policy and politics. Sometimes I like a strong president. But I like a strong constitution more. Congress should have the power to authorize or stop presidents from committing troops to combat or other acts of war. These are crucial decisions. No one person should be able to make them on his or her own.

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran. 

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