The Charlotte News

Monday, Feb. 17, 1941



Site Ed. Note: On the subject of the President as Commander-in-Chief of the armed forces, as explored in "Amendments", below, Alexander Hamilton's brief word in Federalist Paper No. 74 is as follows: "THE President of the United States is to be `'commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.' The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority."

The War Powers Resolution, and specifically the 1973 "legislative veto" powers conferred to Congress in 50 U.S.C. 1544(c), passed over President Nixon's veto, however, does appear to limit the war-making power of the President in modern times. But is it constitutional? The constitutionality of all such legislative vetoes was called into question by I.N.S. v. Chadha, 462 US 919 (1983). But the specific question of the constitutionality of the War Powers Resolution has yet to be directly tested. The Chadha case could have been decided on narrower grounds than it was, and indeed, may not stand for the proposition that all legislative vetoes--the idea that Congress legislatively reserves to one or both houses the power to veto authority given by Congress to the Executive--are unconstitutional as violative of the bicameral and presentment clauses of Article I; certainly, by its words, however, Chadha appears to do just that. A later Court might regard the apparent breadth of the holding, however, as unbinding dicta, and limit the scope of the case to the specific immigration law before it, or at least distinguish other similar legislative veto provisions and enable them to survive constitutional scrutiny on other grounds. But whatever else it does, the case does provide an exceptional peek into the historical reasons for our system of checks and balances.

But do the dissents of Justices Powell, White and Rehnquist, recognizing that the Rehnquist dissent is on somewhat different grounds, have the better of the argument in Chadha with respect to legislative vetoes? If Congress has power initially conferred by the Constitution in a given area, can it not, for the sake of efficiency, provide the executive branch power to carry forth legislative policy by transferring to executive discretion certain decisions, while reserving final oversight of those decisions to the veto power of one house of the legislative branch, all without going through the cumbersome process of both houses passing affirmative legislation to deal with every possible scenario in a given area of Congressional oversight, then presenting it to the President for signature to accomplish the same purpose?

Even so, with respect to the War Powers Resolution, has Congress usurped a power exclusive to the President, which in the last analysis it cannot therefore under any circumstances reserve to itself by legislative veto or otherwise?

The Act seeks to justify itself under Article I, Section 8, giving Congress authority to make laws "necessary and proper" to carry on the functions of government. But if this clause is interpreted so broadly as to limit powers conferred by the Constitution to the Executive or Judicial branches, does the interpretation do violence to the intent of the Framers to maintain three co-equal and separate branches of government?

But was Mr. Nixon's notion that he could bomb anyone he wanted an acceptable resolution of the debate?

Under Article I, Section 8, the Congress has the power to declare war, to raise and support armies, to provide and maintain a navy, to make rules for the land and naval forces, and to "provide for calling forth the militia to execute the Laws of the Union, suppress Insurrections and repel Invasions", in addition to the power to make laws necessary and proper to carry on the constitutionally permitted or mandated functions of government.

Article II, Section 2 provides, "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..."

Reading the two together then, isn't it the case that the Congress should, in the absence of a true emergency where immediate action is necessary, first declare war before the President actually sits in the role of commander-in-chief to send the army and navy raised and provided by the Congress into action? Such was the case recognized at the time of World War II.

Regardless, if Congress has the exclusive power to raise and support armies and provide and maintain the navy, then obviously the President's power as commander-in-chief of the army and navy is wholly dependent on Congress first raising an army or providing for a navy over which the President is to be commander-in-chief. Thus, all Congress really is doing in the War Powers Resolution is reserving, after raising that army and providing that navy, the power of final say in its use by the President. That is only logical as the Congress also has the power to withdraw maintenance of the army and navy, as well as the exclusive power to declare war.

(As to the air force, that's one of those invisible parts of the Constitution, not unlike the right of privacy. We engraft it in there resulting from something called logical inferences, and because the air force proved too cumbersome to administer as a sub-branch of each of the army and navy as it was originally designated until after World War II. (Indeed, the right of citizens of the United States to vote in federal elections, one would think, is one of those fair inferences, too, to be drawn from the Constitution and its amendments. But five of our present Supreme Court justices think otherwise, that it devolves to each of us only by the largesse of our respective state legislatures. (See Bush v. Gore 531 US ___ (2000)) Maybe they think the air force is unconstitutional, too. Strictly speaking, it's not in our copy of the Constitution. Yours?))

The President, not having the power to declare war, is the head of the armed forces and has the power to direct those forces in time of war--but in time of war as declared only by Congress, save where immediate exigencies militate in favor of expediency.

Thus, did Mr. Nixon have the better of the argument? Well, Mr. Nixon didn't wind up so well, as Cash might have predicted from what he tells us in "Amendments", and so we think not. The President best pay attention to the War Powers Resolution. Likely, it's constitutional, or mostly so, strictly speaking, that is.

In fact, is not the most likely constitutional defect that the Resolution defers too much to the President and enables the Congress to give the President legislative power to declare war which he does not have under the Constitution, by allowing for statutory authorization, e.g. by resolution, to wage war by blank check without a formal declaration of war by Congress? (See Panama Refining Co. v. Ryan 293 US 388 (1935) and Schechter Poultry v. U.S. 295 US 495 at 542-543 (1935))

If the case, then any citizen who is adversely affected or in imminent threat of being adversely affected by this action could contest in the Federal courts the validity of that authority of the Congress to so delegate the power.

The Constitution allows only for declaration of war by Congress, not statutory authorization to allow the President to wage war when he sees fit. The "necessary and proper" clause would arguably enable the Congress to grant by statute advance powers, highly specific in their contingency, to the President in the event of true national emergency where there was not time for Congress to issue a formal declaration of war, such as in the case of a nuclear attack. And it was probably the intent of Congress, in order to make the Resolution constitutional, to limit the statutory authority to that sort of situation. Or was it?

The language of 50 U.S.C. 1541(c) limits the times the President can introduce troops into hostilities as being when (1) a declaration of war is issued by Congress, (2) there is specific statutory authorization, or (3), a national emergency by reason of attack on the United States, its territories or its armed forces. Thus, is the last category meant to encompass the second? Or is not the second meant to allow for a more specific form of national emergency other than when there has been an actual attack, but which nevertheless is such that requires immediate action not capable of waiting for the full day or so history has shown it takes Congress to declare war, most recent example of which having been December 7-8, 1941? If category two is used otherwise, that part of the Resolution allowing for statutory authority would appear impermissibly to delegate legislative power to the President to declare war in a way not "necessary and proper" to the constitutional functioning of government, i.e., in a situation other than a true emergency where Congress hasn't time to act.

The argument is not to split hairs over what the action by Congress is called. A formal declaration of war puts the nation and its allies on notice as to the country's intentions and makes Congress and the President accountable to the people for their actions in so doing. The Founders no doubt intended that in such collective decision-making, there could be little room left for despotism or purely political haymaking in waging war when the majority of the people disfavored the action.

Perhaps the best defense of a mutually consensual role between the President and Congress in waging war, with Congress having the exclusive right to declare it and the right ultimately to stop it, comes from the notion expressed in Federalist Paper No. 51, by both Hamilton and James Madison: "In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself." In other words, when the view of Congress is had, and had broadly across both parties and all sections of the country represented, there comes from it a consensus ultimately deriving at any given time directly from the will of the people. And that principle, of course, is the one which must be upheld over all others in a democratic form of government.

We do not suggest that at present, in February, 2003, the form at least required under the War Powers Resolution has not been followed via Senate Joint Resolution 45 and House Joint Resolution 114, passed by the Congress in October, 2002. We do question, however, whether in a disturbed, tense atmosphere brought on by indiscriminate sniper attacks of then unknown origin in and around the nation's capital at the time, and occupying virtually all media time, a true consensus of the American people was in fact heard then such that the Congress rendered, especially within a month of election day, an unbiased view reflecting principles "of justice and the general good" as opposed to "a will independent of the society itself". And so we ask where's the emergency such that in a calm, deliberative atmosphere relatively free of electoral pressures, the matter should not be reconsidered?

There was such a national and international emergency clearly in February, 1941, for a war of aggression already raged abroad and had unremittingly for seventeen months, threatening Great Britain and hence our own interests directly; not so in February, 2003, orange alerts or not. Just because it's orange does not mean we're in Dutch, yet.

The text of the salient parts of the War Powers Resolution, 50 USC 1541, et seq., is as follows:

"Section 1541. Purpose and policy

  1. Congressional declaration
  2. It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

  3. Congressional legislative power under necessary and proper clause
  4. Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer hereof.

  5. Presidential executive power as Commander-in-Chief; limitation

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

"Section 1542. Consultation; initial and regular consultations

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

"Section 1543. Reporting requirement

  1. Written report; time of submission; circumstances necessitating submission; information reported
  2. In the absence of a declaration of war, in any case in which United States Armed Forces are introduced - (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth - (A) the circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement.

  3. Other information reported
  4. The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad.

  5. Periodic reports; semiannual requirement

Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.

"Section 1544. Congressional action

  1. Transmittal of report and referral to Congressional committees; joint request for convening Congress
  2. Each report submitted pursuant to section 1543(a)(1) of this title shall be transmitted to the Speaker of the House of Representatives and to the President pro tempore of the Senate on the same calendar day. Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate for appropriate action. If, when the report is transmitted, the Congress has adjourned sine die or has adjourned for any period in excess of three calendar days, the Speaker of the House of Representatives and the President pro tempore of the Senate, if they deem it advisable (or if petitioned by at least 30 percent of the membership of their respective Houses) shall jointly request the President to convene Congress in order that it may consider the report and take appropriate action pursuant to this section.

  3. Termination of use of United States Armed Forces; exceptions; extension period
  4. Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543(a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

  5. Concurrent resolution for removal by President of United States Armed Forces

Notwithstanding subsection (b) of this section, at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

"Section 1547. Interpretation of joint resolution

  1. Inferences from any law or treaty
  2. Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred - (1) from any provision of law (whether or not in effect before November 7, 1973), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this chapter; or (2) from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this chapter.

  3. Joint headquarters operations of high-level military commands
  4. Nothing in this chapter shall be construed to require any further specific statutory authorization to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands which were established prior to November 7, 1973, and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date.

  5. Introduction of United States Armed Forces
  6. For purposes of this chapter, the term ''introduction of United States Armed Forces'' includes the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.

  7. Constitutional authorities or existing treaties unaffected; construction against grant of Presidential authority respecting use of United States Armed Forces

Nothing in this chapter - (1) is intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties; or (2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this chapter."


The Temper Behind Them Is a Dangerous Thing

The two "amendments" to the Lease-Lend Bill, for which the obstructionist group in the Senate proposes to wage a bitter-end battle, are characteristic of their temper.

One of them, and perhaps both, represent a cool attempt to usurp the Constitutional powers of the President. Under the Constitution the Congress is empowered to provide for an Army and a Navy--to advance or withhold authorizations of men and equipment and appropriations to support and pay for them.

But the President is specifically designated as Commander-in-Chief of the Army and the Navy, without any strings attached to his authority. And by definition a commander-in-chief is one who has absolutely final say as to the disposition of the arms under his direction.

Such a provision is necessary to the safety of any nation, for in a crisis it is often necessary to strike immediately and long before any deliberative body can come to a decision. The Fathers wanted the Congress to have the final say-so with regard to war and peace, so far as that was humanly possible. But they foresaw the Burton Wheelers and Hiram Johnsons and Bennett Clarks and Arthur Vandenbergs and Robert Tafts, and wisely made provision against them.

Presidents have constantly used the Navy and the Army for acts of war or without waiting for Congressional authorization, acting on their own judgment that was necessary to the safety of the nation.

It is therefore clear that the Congress has no authority whatever to attempt to say whether or not naval vessels shall be used for convoy purposes. As to whether or not it has authority to forbid the transfer of naval ships is a more uncertain case. It can be argued that it has, on the ground that it alone can authorize such ships. On the other hand, such a prohibition clearly limits the power of the commander-in-chief, which is not permitted in the Constitution with respect to the existing equipment.

None of this is to say that he may not have a moral obligation to consult Congress in both these cases. If time allows he plainly has the obligation, because of the great popular feeling about the matter. And he ought to determine the time question with strict honesty, not by sophisms. But moral obligation and the legal right of Congress are two different things.

Is this to say, then, that legally the President is an absolutely irresponsible agent? Of course it isn't. He is subject to impeachment if he uses his powers wrongly, is always at last answerable to the whole people for his acts.

But the basic assumption of the Constitution is that the President is a man whose judgment and integrity are to be trusted--who will, as God gives him light, do his honest best for the interests of the people of the United States. Without that assumption, democracy is impossible--will inevitably go the way of France.

One motive behind these "amendments," by the whole obstructionist program, is honest distrust of the President on the part of sentimental pacifists, who fear, quite justly, that the President will not take the course of appeasement they want. But another and undoubtedly more powerful motive is a deliberate effort to inspire distrust of the President in the minds of the people--to hamstring his every move by popular suspicion--a motive proceeding from bitter partisanship, personal spite, and other ignoble motives. It is overwhelmingly the most dangerous thing in the Republic at the moment.


That Paradox

The Little Reader May Explain It, But It Stumps Us

There it is again--that paradox of North Carolina's effulgent support of the New Deal and its unabashed non-support in North Carolina of the New Deal's aims and objectives.

It really is a queer thing. North Carolina politicians go to national Democratic conventions and lead the parade for Roosevelt. Her sons and daughters, properly aroused, go to the polls and it's Roosevelt, Roosevelt, Roosevelt! Her men in Congress go straight down the line with the New Deal, and would catch Old Ned from the back-homers if they didn't.

And those same politicians, elected to State office by those same whooping New Deal voters, go to Raleigh and piece by piece enact a legislative program which is a flat denial of all the New Deal stands for.

It is an incontrovertible fact, supported throughout by the record. The main and irreconcilable difference between the State Government's and the New Deal Government's policies lies in their attitude toward budgets. Before any money is spent in Raleigh it's got to be in hand or in plain sight from taxes. Whereas in Washington Mr. Morgenthau simply makes out a new sheaf of notes payable, and let the next generation worry.

It came up again, that paradox, in North Carolina's Legislature last Friday.

Now, one of the basic doctrines of the New Deal is that employers shall pay employees more (30 an hour minimum) for working less (40 hours a week maximum). Anybody who fails to subscribe to that doctrine without reservation cannot be a true New Dealer.

Yet New Deal-supporting Governor Broughton tells the Legislature that North Carolina is not yet ready for a 48-hour week and a 25-cent minimum wage.

Our preference is for North Carolina's cautious way of doing radical legislative business, but that quality and its whole-hearted support of President Roosevelt and the New Deal simply cannot be reconciled to make sense. Unless, that is, we all agree that the whole is greater than the sum of its parts, and that what the 48 states are unwilling and unable to do is but duck soup in Washington.

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