(Column by George Will, Dec. 10) War is government’s gravest undertaking, but defining war is difficult, declaring it is rare, and making constitutional values and procedures pertinent to it is problematic. This has been made more so, and more urgent, by the untethering of the modern presidency from restraints other than the occupant’s constitutional conscience.
In “The President Who Would Not Be King: Executive Power Under the Constitution,” Michael W. McConnell, Stanford law professor and former federal judge, writes that Article I vests in Congress legislative powers “herein granted” and enumerated. Article II simply assumes the president shall exercise all powers executive in nature. Those powers were negligible in 1789, when the executive bureaucracy was smaller than Congress. Today, executive power is everywhere….
Citing decisions of self-restraint by presidents Washington (dealing with Native American tribes), John Adams (the Quasi-War with France) and Thomas Jefferson (the Barbary War), McConnell concludes that an originalist understanding of war powers is that “congressional authorization is required before the President may employ the armed forces in offensive military operations that constitute acts of war.”
More recently, however, the Justice Department’s Office of Legal Counsel has, McConnell says, “repeatedly” said that a military operation that is not “sufficiently” extensive in “nature, scope, and duration” does not constitute “war” requiring congressional approval. “This interpretation,” McConnell tartly notes, “slips the constraints of founding-era understanding based on objective questions of the law of nations, and substitutes a Goldilocks-like question about ‘sufficient’ extent.”…. [The rest of this column can be found right here at this link.]
