Commentary

Mike Lee and George Washington Are Right About the War Power

By Terence P. Jeffrey | March 11, 2020 | 4:47am EDT
Sen. Mike Lee (R-Utah) (Photo by Mandel Ngan/AFP via Getty Images)
Sen. Mike Lee (R-Utah) (Photo by Mandel Ngan/AFP via Getty Images)

Sen. Mike Lee of Utah has adopted in the 21st Century the same interpretation of the Constitution's war power that President George Washington did in the years immediately following ratification of the Constitution.

Lee and Washington are right. Those who reject their interpretation are wrong.

"Any sustained offensive military operation would require congressional authorization," Lee told me in an interview last week.

When the framers of the Constitution convened on Aug. 17, 1787, the issue of the day was language in the draft Constitution that gave Congress the power "to make war."

Charles Pinckney of South Carolina, according to notes taken by James Madison of Virginia, opened the debate by suggesting the Senate alone should be given this power.

Pierce Butler, also of South Carolina, then made a recommendation that incited some ire. He called for "vesting the power in the President."

Not one delegate spoke up to support Butler's proposal.

In fact, Madison and Elbridge Gerry of Massachusetts countered Butler's proposal by offering their own amendment.

They "moved to insert 'declare,' striking out 'make' war; leaving to the Executive the power to repel sudden attacks."

Roger Sherman of Connecticut agreed with the idea of giving the president the limited power to "repel" attacks but did not believe the language needed to be amended.

"The Executive (should) be able to repel and not to commence war," Sherman said.

Gerry then expressed outrage at Butler's proposal to give the war power to the president.

"Mr. Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war," say Madison's notes.

George Mason of Virginia expressed his agreement with Madison's and Gerry's amendment while frankly stating his belief that a president could not be "trusted" with the war power.

"Mr. Mason was (against) giving the power of war to the Executive, because (he was) not safely to be trusted with it," say the notes.

He "was for clogging rather than facilitating war; but for facilitating peace. He preferred 'declare' to 'make.'"

The convention voted for the language backed by Madison, Gerry and Mason. They replaced "make" with "declare," thus, as Madison recorded in his notes, "leaving to the Executive the power to repel sudden attacks."

As this column has noted before, George Washington, who presided over the Constitutional Convention, had no problem understanding the meaning of the war power when he served as president.

In 1792, as constitutional scholar Louis Fisher has noted in "Presidential War Power," Secretary of War Henry Knox wrote to Gov. William Blount of the Southwest Territory explaining why his boss, President Washington, would not order offensive military action against Native American tribes in that region.

"Whatever may be his impression relatively to the proper steps to be adopted, he does not conceive himself authorized to direct offensive operations against the Chickamaggas," Knox wrote. "If such measures are to be pursued they must result from the decisions of Congress who solely are vested with the powers of War."

A year later, Washington himself sent a letter to Gov. William Moultrie of South Carolina addressing a similar issue with the same point.

"The Constitution vests the power of declaring war with Congress," Washington said, "therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject; and authorized such a measure."

No politician or pundit who claims to embrace an originalist interpretation of the Constitution can disagree with George Washington on this.

In a speech on the Senate floor on Feb. 12, Lee clearly explained what the war power means — and Washington's decision to defend it.

"He understood that he had taken an oath to uphold, protect and defend the Constitution of the United States," said Lee. "As president, he would not deviate from it, because he had taken an oath that he wouldn't."

"When the American people are called upon to put their own blood and treasure — their own sons and daughters on the line in the name of safety, security, freedom — nothing else can suffice but a vote in Congress," Lee said.

"George Washington understood that," he said.

Lee believes that Barack Obama violated the Constitution when he intervened in Libya's civil war, but that Trump acted with legitimate constitutional authority when he killed Iranian Gen. Qassem Soleimani.

"Was it a constitutional act for President Obama to intervene in the (Libyan) civil war using the United Nations as his justification?" I asked Lee.

"No," he said, "and it's especially important there to remember that the minute you acknowledge that we're undertaking an offensive, sustained military campaign of any sort — as I think we are the minute we're supporting an offensive measure, whether it's as a co-belligerent or whether we're acting alone, to destabilize the incumbent government of a foreign country on that country's soil — we have crossed the threshold into war."

I asked Lee, "Does the president have the power to initiate a war with Iran?"

"No," he said. "The president does have the authority to repel attacks and defend us from an actual or imminent attack. The president had the authority to kill General Soleimani. This occurred just a couple of days following an attack on a U.S. compound in the Middle East, and it occurred a couple of days before they believe other attacks were about to occur."

"So, taking out Soleimani was a good modern example of the president using his power to repel sudden attacks?" I asked Lee.

"That's right," Lee said.

He was right again.

(Terence P. Jeffrey is the editor in chief of CNSNews.com.)





 

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