WAGING WAR
The Clash Between Presidents and Congress 1776 to ISIS
David J Barron
Simon & Schuster
560 pages; $30
When this country was at war in Vietnam, Richard Nixon ordered American forces into Cambodia in order to deny the North Vietnamese Army sanctuary in that unhappy country. The incursion occasioned widespread protest and concern. Two senators — John Cooper, a Kentucky Republican, and Frank Church, a Democrat from Idaho — drafted an amendment to the Foreign Military Sales Act prohibiting all further combat in Cambodia.
Opponents of the measure insisted that the lives of American soldiers would be in jeopardy unless their commander in chief could eliminate the Cambodian sanctuaries. And surely he had a right to do that. After interminable debate, an amendment was added to the Cooper-Church measure, affirming that it was not intended to take away any of the President’s constitutional power and authority. And then, a second amendment was added from the other side, providing that nothing in the Cooper-Church measure should be read as taking away any of the prerogatives of Congress either.
The result — a qualified victory for Nixon but an emboldening of his congressional opponents — symbolises the messy equilibrium over the years between Congress and the White House on the conduct of war. David J Barron’s fine and detailed history traces this standoff from the earliest days of the Republic, when George Washington and the Continental Congress began to give content to the ambiguous phrase “commander in chief” (inherited like other constitutional verbiage — think “cruel and unusual punishment” — from 17th-century England).
Across 400 pages of text, Mr Barron, a federal judge on the United States Court of Appeals for the First Circuit, gives us vivid narratives of the confrontation between Thomas Jefferson and Representative John Randolph over the Aaron Burr uprising; the bitter divisions over “Mr Madison’s war” in 1812; Congress’s attempt to impose broad tactical choices on the Lincoln administration’s conduct of the Civil War through the Second Confiscation Act; struggles over conscription in World War I; the Lend-Lease controversy in 1940-41; Dean Acheson’s defence of the President’s war powers in the Korean conflict; Vietnam both before and after Cooper-Church; and of course for us, since 9/11, the war on terror.
The stories are terrific, though one has to fight through an immense amount of narrative detail for any broader analysis of what was going on. Waging War does offer a political analysis about how far Congress has been prepared to push its interventions over the years and how defiant Presidents have been willing to be. Some have been pretty fierce in defence of what they took to be their prerogatives — Nixon and George W Bush spring to mind. But few have been willing or able to sustain the proposition that the commander-in-chief authority under Article II makes all legislation affecting the conduct of war unconstitutional. “Presidents simply have not been willing to claim the unchecked powers we often assume they think they have.”
But what exactly is at stake in these tussles between President and Congress? It is not just an exercise in constitutional formalism. If for no other reason than that the textual basis of the rival positions is so thin, we need to understand the reasons that argue in favour of Congress having some authority in these matters. Mr Barron does a good job of presenting what is at stake on the President’s side. But what stands on Congress’s side against these concerns about decisiveness and necessity?
Is it just a case of checks and balances? Mr Barron says we are better off because Presidents have not been able to exercise sweeping unchecked power. But a check doesn’t need to come from Congress. Any institution other than the White House will do: A strong cabinet, the courts, the press, civil society or (as in the war on terror) international opinion.
Is there something special about Congress as such? Mr Barron says that a congressional check helps prevent “group think” within the White House. Or might it be something about the distinctive character of congressional representation? Of course the presidency is an elective office. But there is a different kind of representation for Congress — state by state in the Senate and district by district in the House, with more than 400 members representing the 50 states. And it matters surely that the House, with its diverse local representation, is also the place where any revenues for war must be raised.
There have always been concerns about the President as monarch — ever since the time of the anti-Federalists. At the beginning of Nixon’s second administration, Arthur Schlesinger Jr wrote about “the imperial presidency”. These are not simply abstractions. They are worries about what happens when a single person is empowered to make wartime decisions without consulting the body set up specifically to represent the very people who will have to pay for those decisions in blood and in treasure. Mr Barron has given us a rich history, and not the least of its riches is that it occasions these thoughts about why it is Congress and not just any old institution that faces off against the President in wartime.
© 2016 The New York Times News Service
