We’re Putting Unconstitutional ‘Concentration of Power in President,’ Says Constitutional Scholar

June 24, 2011 - 2:54 PM

gaddafi-Obama

President Obama meets Libyan leader Muammar Gaddafi at the G8 summit in L’Aquila, Italy on July 9, 2009. (AP Photo)

(CNSNews.com) - A scholar who served for 40 years as a constitutional law expert at the Library of Congress is pointing to President Barack Obama’s use of military force in Libya without congressional authorization--and, in the longer-term, a lack of effective action by Congress to protect its constitutional prerogatives--as evidence the United States has begun putting an unconstitutional “concentration of power” in the hands of one man.

“We’re ending up with a concentration of power in the president which is not constitutional,” Louis Fisher, now a scholar in residence at the Constitution Project, told CNSNews.com’s Online With Terry Jeffrey.

Fisher, who is the author of Presidential War Power, a definitive scholarly account of the drafting and historical implementation of the constitutional war power, said President Obama cannot use the United Nations or NATO to authorize his use of military force in Libya because under the U.S. Constitution only Congress can authorize a U.S. military action not needed to defend the United States against an attack.

“I think President Obama had an obligation to get authority up front,” said Fisher. “Obama, as you know, reached out to NATO, reached out to Security Council, reached out to the Arab League.”

Fisher said he is not calling for impeachment hearings for Obama, but did say he believes members of Congress and the public should understand that “nothing would be more impeachable” than war without authorization and that it was “a very grave offense.”

“I’m not going to recommend that the House Judiciary Committee hold impeachment hearings. But I would like members of Congress and the public to say that nothing would be more impeachable than a president who takes the country to war without coming to Congress, who does it unilaterally,” said Fisher. “So I would like people to be educated, including members of Congress to be educated, that that is a very grave offense.”

In addition to working for four decades as a constitutional expert at the Library of Congress, Fisher also taught, among other places, at Georgetown University and the William and Mary Law School.

“I would like to make it clear that in the UN Charter you cannot have the president and the Senate through the treaty process--the UN Charter or NATO--you cannot have those two actors take the power of Congress and the House of Representatives and give it to either the Security Council or to NATO countries,” said Fisher. “And I think even people who read presidential power broadly know that that’s not possible.

“You cannot use a treaty to amend the Constitution,” said Fisher.

Fisher points out that the war-powers language presented to the Constitutional Convention in 1787 initially granted Congress the sole power “to make war.” According to James Madison’s notes from the convention, Madison himself and delegate Elbridge Gerry of Massachusetts offered an amendment to change the language to “declare war.”

“Mr. Madison and Mr. Gerry moved to insert ‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel sudden attacks,” said Madison’s notes.

The ensuing debate at the Constitutional Convention, the ratification process that followed, and the treatment of the war power by early congresses, presidents and Supreme Courts, Fisher explained, all make clear that the Founders understood that the Constitution gave Congress authority over initiating hostilities—whether sharply limited actions or broader wars--except when the president needed to act unilaterally to “repel a sudden attack.”

In the debate at the constitutional convention, for example, Roger Sherman of Connecticut agreed with Madison and Gerry’s understanding of what the war power should be, saying, as recorded in Madison’s notes, that the “Exectuive shd. be able to repel and not to commence war.”

Apparently responding to Pierce Butler--a delegate from South Carolina who did suggest that the power to initiate hostilities be vested in the president--Gerry said he “never expected to hear in a republic a motion to empower the Executive alone to declare war.”

Fisher said that Butler was “the only one” who argued at the Constitutional Convention for giving the war power to the president. The “other Framers were just stunned that anyone could give that power to the president,” said Fisher. “And later Pierce Butler backed away a bit. He recognized he was out by himself and no one would support that argument.”

George Mason of Virginia, who supported Madison and Gerry’s successful amendment, told the Constitutional Convention, as recorded by Madison, that he “was agst giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred ‘declare’ to ‘make.’”

Fisher said Mason’s language illustrates the Framer’s belief that both houses of Congress needed to act on a decision to go to war.  “The reason he would use words like that is if you go to war, it’s part of the deliberative process, it’s not the decision of a single person,” said Fisher. “It’s the whole elected officials in the legislative body making that decision.”

Every president and Congress from the ratification until the Korean War in 1950 respected this meaning of the Constitution’s war power. 

“From 1789 to 1950, every president, Woodrow Wilson, Franklin D. Roosevelt, the rest, Polk, they all went to Congress either for authorization or a declaration,” said Fisher.

Fisher says that even after President Harry Truman told Congress that he would not use U.S. troops in a U.N. operation without first getting congressional approval, and even after Congress passed the U.N. Participation Act that required that the president come to Congress first, Truman went ahead and ordered troops into combat in Korea without congressional authorization.

“So in 1950, when he goes to war against Korea, he never ever came to Congress either before or after for authority,” said Fisher. Truman, he said, later told reporters the conflict in Korea was not a war, but a “police action.”

More recently, President Bill Clinton was a prolific abuser of Congress’s power to authorize military actions not needed to repel attacks on the United States.

“He never came to Congress one time for authority, Clinton,” said Fisher. “Invade Haiti. Go into Bosnia. Go into Kosovo.”

Looking back on his 40 years of experience working with Congress, Fisher says that some members fail to protect the rightful constitutional powers of the body in which they serve, thus ceding authority to the president that the Framers never intended the president to have.

“Some take care of their institution, many do not take care of their own institution,” said Fisher. “That was an assumption by the Framers, that each branch would take care of itself and push away encroachments.

“If members of Congress don’t do it, then I think constituents and the general public have to say that it’s your duty,” said Fisher. “You have to protect yourself, because if you don’t protect yourself, you’re not protecting us. And we’re ending up with a concentration of power in the president, which is not constitutional.”

Fisher said the media is culpable, too.

“And the media doesn’t help,” he said. “The media often says: Oh, the president has all these really brilliant people around him and he knows what the national interest is and so forth. So the media plays into that.”

Nor, he said, are scholars always helpful.

“And even scholars do it,” he said. “Arthur Schlesinger’s famous for the imperial president. Well, he helped build up the imperial president with his books on Andrew Jackson and FDR and John Kennedy. So scholars have been very negligent on having this really idealistic view of the president. He’s someone with goodness and expertise and all of that. It’s purely imaginary.”

On Friday, the House cast a pair of seemingly contradictory votes relevant to its constitutional war power. It voted against a resolution that would have authorized President Obama to continue to use the U.S. military in Libyan operations while prohibiting the use of ground troops there. Then it voted against a resolution to cut off funds for the Libyan operation.