The Other McCain

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McCarthy On The War Powers Act

Posted on | June 9, 2011 | 8 Comments

by Smitty

Read this NRO post by Andrew McCarthy on the War Powers Act. Truly interesting Constitutional thinking.

What makes the WPA constitutionally problematic, though, is mostly its legislative veto provision, which purports to enable Congress to direct the president to withdraw forces by a joint resolution. (See this 2004 CRS analysis, here.) Joint resolutions are not binding law because, under the Constitution, law can only be enacted if the president signs a bill passed by both houses of Congress, or if Congress overrides a presidential veto of that bill by the required super-majority. (As Rich points out, the veto-override is how the WPA was enacted in the first place.) Putting aside the knottier question whether Congress has the authority to order a president to withdraw forces (i.e., could Congress constitutionally direct a president to withdraw forces by overriding the presidential veto of a bill directing him to do so?), Congress certainly cannot direct a president to do anything by a mere resolution.

Where I would like to see the conversation go is historical. If the decisions stretching from the Constitution to today are taken one at a time, you find yourself giving the people in power the benefit of the doubt; it is at least possible that you’d have done the same in their shoes.
Step back, though, and consider the thrust of American history since the National Security Act of 1947. Do we seem increasingly embroiled in war because human nature has become more warlike, or is it just because we have a hegemonic arsenal laying around?
This is an increasingly crucial set of paradoxes in the American psyche, at least for me:

  • Prior to 1947, we were never hegemonic; that is a facet of Holy Progress.
  • Hegemonic power is at odds with separation of powers in the Constitution.
  • Hegemonic power may be economically unsustainable alongside the social welfare state, which we are addressing with equal sobriety.
  • Having assumed hegemonic power, the desirability and possibility of cleanly divesting ourselves of it is not clear.

On a personal level, coming clean about a screw-up is typically the least-worst approach. This does not mean that getting better is painless, just that honesty minimizes the pain.
Yet ours is a political system that does not reward honesty.
So the question moves to whether we find another sweet liar to move these problems down the road, or whether the economic reckoning flattens us, obviating the question.
I love my country, but, based on the historical evidence, I do not think it can produce leadership clever enough to do anything more than mark time until some economic reckoning forces the question. We’ll have less control, when ‘it’ happens. But our capacity for analysis only kick in retrospectively.  And then, like some Tommy Boy, we’ll have a montage, and recover. It’s who we are; it’s what we do.

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Comments

  • http://www.redstateeclectic.typepad.com AngelaTC

    With all due respect, I think you’re vastly over-estimating our ability, or at least our willingness, for retrospective analysis. 

    Sadly, I believe that what’s gone is gone, and it is never, ever coming back.  

  • Norman Invasion

    Impeachment is the correct course for Congress to assert its authority.  And it’s a device that ought to be use much more frequently.  (To head off any leftist ninnies at the pass:  were there not articles of impeachment drawn up against Bush?  If they did not pass, then that’s how the system works.)

    But every time the President defies Congress, there should be articles of impeachment drawn up, & voted upon.  If we can get the government to eat enough of itself it may soon be small enough to respect the people it lords over.

  • Zupa234


    Prior to 1947, we were never hegemonic; that is a facet of Holy Progress.

    Weren’t the Monroe Doctrine and the Spanish-American War defining examples of hegemonic national policy?

    Re: “Holy Progress” and “Tommy Boy”. Did Chris Farley’s character “have a montage” in the movie? And how would a nation do that? As a frequent reader, I’d appreciate it if you’d be less cryptic, or at least explain your signature riddles. When you say things that can’t even be deciphered with a Google search, you frustrate rather than communicate.

  • DaveO

    Smitty,

      Good points. Prior to the WPA, every conflict – whether it was the Quasi-war with France and the take down of the Barbary Pirates through Viet Nam and its Gulf of Tonkin Resolution to OIF’s AUMF – America has enjoyed Presidents willing to wield military power, and a Congress willing to back up said President.

      And now we get to today. The issue isn’t the WPA. The issue isn’t even the Constitution-imposed check and balance on the Executive. The issue is a significant character flaw in our POTUS: hubris exacerbated by narcissism.

      Obama was a foot soldier in the Left’s campaign of support and protest for the rebels of El Salvador and the Sandanistas of Nicaragua. He was imprinted with the understanding that the POTUS can wage war as a potentate, and that Congress must always be in opposition. The question of the foot soldiers then was ‘If only the President would use his powers for good!’ The concept that the POTUS must work in close coordination with Congress is alien to Obama. Having to accept the opinion and actions of others is a sign of weakness, of being not Good. Obama will not tolerate being seen as weak, or ignorant, or on the side of evil.

      If the WPA were the issue, our Solicitor General would be making the Executive’s argument before the SCOTUS even as we read this words.

      Does having hegemonic power influence our choices? First, I’ll define, for my answer, that we are hegemonic in an economic sense – not militarily. And the answer is yes, to protect our economic hegemon we will do just about anything overseas. We do need to get smarter, and begin employing an economy of force through unity of effort, but even that is not the American way.

  • John Galt

    Ever since Andrew Jackson defied John Marshall’s ruling that the Indian Removal Act was unconstitutional and got away with it, the only things keeping our country from becoming a military dictatorship have been each President’s forbearance, and the potential unwillingness of at least some of the troops to follow unconstitutional orders.

    Just wait until we elect a President who is as Machiavellian as Obama but is also popular in the Army.  He will make himself the next Caesar.

  • DaveO

    I disagree. The services are lead by practical Constitutionalists: they are not learned in the case law of the Supreme Law of the Land, but they read and comprehend the English written by our Founding Fathers. The clue that Obama is attempting a coup is the sudden arrest, and hiding, of about 200 flag officers – just like what is happening in Turkey these days.

    Of course, instead of arresting and hiding them, another option is to keep starting wars and conflicts until the optempo destroys the military. I see we’ve started bombing Yemen. They never bomb hot spots like Barbados or the Caymans. 

    If you’re seeking a tyrant’s army, look no further than the thousands of police forces, most of them now paramilitaries, existing in each agency of the Executive Branch, plus national, state, county, and local police. Add to that hundreds of laws and thousands of page of regulations, and you’ve got yourself one fine police state.

  • http://www.leftbankofthecharles.com Charles

    One reading of the WPA is that the President gets another 60 days in Libya every time the bombers return to base. And the question of the constitutionality of a joint resolution to withdraw troops is moot when no such resolution has been passed.

    Obama has exercised his Constituional authority, Congress has not excercised its Constituional authority. I don’t see how a Congress can impeach a President for failing to heed its own inaction.

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