THE WAR POWER AND THE WHITE HOUSE
Curtis, George L.
The War Power And The White House By GEORGE L. CURTIS "The Congress shall have power ... to Declare War." Art. 1 sec. S of the Constitution of the United States * * * "By the Constitution,...
...Peace by force," "international security through international organization," "a world police force," are all phrases that mean one thing only: War by the United States against any nation which the international organization decides is an aggressor...
...Are we willing to grant to the President, through his representative in the international organization, the power thus to declare war...
...The unhappy experience of the Italian people in the present war is example enough of the national disaster which can overtake a nation shoved into a war for which the people have no enthusiasm...
...determination of the President's representative—in other words, upon decision from the White House...
...Above are two quotations, a clause from the Constitution of the United States and a passage from the leading case expounding that clause...
...Presumably it will take at least some time for the international organization to deliberate and make its determination to use its armed force...
...If Congress is as willing as the President to declare war, no one can complain if Congress reveals that willingness...
...The Founding Fathers meant the war-making power to be in Congress and in Congress alone...
...We do not know who will be President on the next occasion of international crisis...
...Wisdom lies in keeping the war power where the Constitution placed it—in the hands of the Congress of the United States...
...This, as many honest Americans sincerely believe, may be a good thing...
...The United States Supreme Court in The Prize Cases, 1863...
...THE Dumbarton Oaks agreement provides in Chapter VIII for a standing army, navy, and air force to be used as the council of the organization dictates to punish any countries which the Council considers as aggressors...
...But the words which the proponents of this view have been using to describe their plan make it sound simpler than it really is...
...Only one: That the advocates of the scheme believe that by this means a President will be able to move us so inextricably into a foreign war that we will have no alternative but to go ahead with it...
...Had the people of the United States in 1787, when the Constitution was adopted, ever supposed that the United States could be committed to war by the fiat of the President through his foreign ministers, the Constitution would have been hooted out of the 13 states...
...S of the Constitution of the United States * * * "By the Constitution, Congress alone has the power to declare a national or foreign war...
...It will take at least a short time for the representatives of the countries to consult their national leaders to determine the national policy...
...Here is a question which can be considered without any regard to personalities...
...We should not take steps now to entrust that unknown with the power single-handedly to make the next American war...
...As it was, the Constitution almost failed of adoption because it provided for a standing national army, which many thought was incompatible with the liberties of the people...
...In other words, the Council is to declare war for all its members against the offending nations...
...for what is our opportunity of military success if an unwilling people is dragged into war by a dominating leader...
...The Dumbarton Oaks plan should never be accepted so long as it does not preserve, in form and in substance, the traditional American Constitutional guarantee that the power to declare war belongs and will remain in the Congress of the United States...
...If then the Congress want* to declare war, it can, and quickly...
...But only with the forms of the Constitution, not with its substance...
...Again and again the authors of the Federalist assured the people that they need not fear of the abuse of military power because it would be lodged in Congress, which in turn would be responsible directly to the people...
...What possible reason can there be, then, for desiring to strip Congress of its war making power and to transfer that power to the executive...
...The President has no power to initiate or declare a war either against a foreign nation or a domestic state...
...Those passages are not cited because in the technical sense it would be unconstitutional to give the .President the power proposed at Dumbarton...
...The Constitution was adopted by the people after a prolonged discussion of its strengths and weaknesses...
...During this period the Congress of the United States can also be assembled if it is not already in session...
...Only One Possible Reason It is argued that this measure is necessary, that aggressors move so swiftly in modern times that there will be no opportunity to consult the Congress if the aggressor is not to be allowed to go unchecked...
...The best known publication in its support was the Federalist, written by Alexander Hamilton, the first Secretary of the Treasury, John Jay, the first Chief Justice, and James Madison, the fourth President of the United States...
...The published report of the Dumbarton conferees is ambiguous, probably deliberately so, as to whether the American representatives at the council will be able to commit the use of the United States troops without previous approval by the Congress of the United States...
...Here is a.typical example of their assurances to the voters: "Independent of all other reasonings upon the sub* ject, it is a full answer to those who require a mora peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people...
...Sincere persons can hold such a view, but they are frighteningly complacent in their convictions...
...The war power is too great, the consequences of its exercise too awful, to leave it ever in the unlimited control of one- man...
...This is not true...
...There is the sharpest issue of foreign policy which will divide the country in the months to come...
...Assuming that some international organization is desirable, should the United States become a party to any plan under which the United States can be thrust into war without the approval of Congress...
...Under the Dumbarton proposal, the United States will enter wars on the...
...Obedience to his clause in the Constitution is not application of the precept of history merely because it is history...
...No Personalities Involved This is the basic result of Dumbarton Oaks: The organization planned will be a war-making organization...
...Doubtless some slick legal trick can be devised that would make the "war by the President" plan square with the forms of the Constitution...
...This is the essential, and, after all, only efficacious security for the rights and liberties of the people which is attainable in civil society...
...What the generation which accepted Washington's program of "No entangling alliances" would have thought of a world army would have been unprintable...
...It is at least arguable that the United States ought to join with Great Britain and such other nations as choose to go along on a program of punishing any country which attempts to break the peace...
...The question becomes of importance only if there should be a difference between Congress and the President on whether war should be declared...
...Forty-eight hours should be sufficient, in an extreme emergency, for the Congress to be notified and to meet...
...If, on the other hand, the President desires war and Congress does not, the country should not go to war...
...The issue, in truth, is the degree of confidence to be placed in the people's representatives...
...Doubtless the world will lick its wounds for a sufficiently long time after the present conflict so that no decision as to actual participation in a future war will have to be made within the term of service of whatever President is elected November 7. The thesis of this article arises from that very fact...
Vol. 8 • November 1944 • No. 45
