It’s been something of a shock to the system to have war news at the breakfast table all week, such a far cry from batting around, say, impeachment and Monica Lewinsky. One final ironic reflection this prompts as we leave the “Breakfast Table” is that the nation got a yearlong constitutional law lesson on the impeachment process and the validity of the independent-counsel statute. The average person at a bar could hold forth impressively on such matters as whether civil perjury is an impeachable offense, whether censure of the president is a bill of attainder, and whether Ken Starr operates as an inferior or superior executive officer.
Now, these are interesting and important matters of separation of powers, to be sure. But when the president agrees with our NATO allies to drop bombs on Yugoslavia, you might think that at least somebody would ask a constitutional question about separation of powers in this context, too. Such as what gives the president authority to do that?
The Constitution gives Congress the exclusive power to declare war, and there’s been no such declaration. The president is the commander in chief, but it’s never been settled that this power authorizes him to wage any offensive use of force. We are signatories to the NATO treaty, but that’s a collective defense pact, not an authorization to intervene in a civil war even in order to prevent genocide or protect human rights. And even if it were, only the Senate advises and consents on treaties, which suggests that no treaty can substitute for the joint action of both houses of Congress that is required to declare war. Congress’ silence alone can’t normally substitute for affirmative authorization. And even a long tradition of congressional acquiescence in executive-initiated attacks is not the same as a constitutional authorization.
Yet this question goes unasked and unanswered in the news coverage. It’s not a question we’ve asked much in any recent intervention, a neglect my friend and former colleague John Hart Ely tried to reverse in his fine book War and Responsibility a few years ago. Few issues are a more important reason to have a constitution.