U.S. Mission In Libya Exposes Divisions In Congress

[K. A. Pital]

Yup. I think part of the problem is that currently nations of the world love to fight wars without declaring them - America did not formally declare war on Libya, and in general refrained from formal declarations of war. So that anachronistic bit about Congress having the power to declare war can be thrown out of the window if it comes to a real legal standoff. *shrugs*

[Simon_Jester]

However, the War Powers Act also strikes me as being an unconstitutional infringement on the President's ability to set foreign policy, and is an overreach by Congress into the types of political questions that the President is supposed to handle.

Excuse me? Since when was the decision to fight a war something the President was supposed to handle?

The President is Commander-in-Chief of the nation's armed forces. He is entitled to make decisions about the deployments and dispositions of the US military, its personnel, and its physical assets, among his other duties and powers.

He is not entitled to commits acts of war on foreign territory, any more than any of his generals or colonels are.

There are precedents for the idea of an official who, by virtue of the state's military necessity, assumes supreme command of the military and has the power to override normal laws and constitutional requirements. The Romans called them dictators.

Before the fall of their republic, the Romans only chose a dictator during times of national emergency. Normally, their armies might fight battles or even wars on the frontiers, but the armies were subordinate to the Senate- if the Senate ordered a general to break off a campaign, or to leave his troops and come to Rome to be punished for violating some rule, he had to obey.

Moreover, the president can't even cite that precedent, because he is not a dictator. Nothing in the Constitution entitles the president to ignore the law by virtue of any rank he might have as "commander in chief." The mere trait of "being commander in chief" does not carry an automatic power to ignore laws, any more than carrying the rank of "field marshal" would. Being the highest-ranking military officer in the state does not give you the right to ignore the laws of the state.

While the president's responsibility for managing the US military in time of war and time of peace is still there, he does not have the power to decide how this military will be used at all times- any more than a general or colonel does. He cannot simply decide "okay, today we will deploy our bombers in Missouri, but tomorrow we will deploy them to Libya where they will drop bombs on someone I personally disapprove of."

Because that involves committing acts of war against a foreign country. And the decision to do that is not within his remit.

What possible authority can Congress claim in saying that this is fine, except when it lasts for more than n days and hostilities are involved? In addition, the President is entitled to direct foreign affairs, including recognizing and negotiating with foreign governments.

The president is entitled to direct foreign affairs, but not to ratify treaties- which the Senate must do- and not to engage in acts of war as part of his foreign affairs. If he wants to commit an act of war against a foreign country, he should damn well have to seek out congressional approval.

All of them, quite frankly. The constitutionality of the War Powers Act has been questioned since it was first conceptualized. And not unjustly so. It manifestly restrains the President's ability to command the nation's armed forces.

Yes, it does... because of a constitutional requirement.

The ability to command the armed forces is not the same thing as the ability to decide where they will fight. A general may be appointed "supreme commander" of the armies fighting in a region (say, the European Theater of Operations); this does not mean he gets to decide whether his armies will be fighting in that region. Instead, he is appointed to command those armies, to get them battle-ready, and to use them in battle if a battle is called for by outside authorities.

In a democracy, as opposed to a military dictatorship, the army command must be responsible for their actions at every rank. There can be no general, or super-duper-general, with the power to commit the nation as a whole to war without being overseen by civilian control of the military.

This is very important to the difference between democracy and dictatorship. Or don't you agree, Ossus?

[Master of Ossus]

He is not entitled to commits acts of war on foreign territory, any more than any of his generals or colonels are.

Why? Because you say so?

There are precedents for the idea of an official who, by virtue of the state's military necessity, assumes supreme command of the military and has the power to override normal laws and constitutional requirements. The Romans called them dictators.

[snip]

Moreover, the president can't even cite that precedent, because he is not a dictator.

Are you seriously citing to Roman tradition in an effort to argue that the actions of a US President are unconstitutional?

Nothing in the Constitution entitles the president to ignore the law by virtue of any rank he might have as "commander in chief." The mere trait of "being commander in chief" does not carry an automatic power to ignore laws, any more than carrying the rank of "field marshal" would. Being the highest-ranking military officer in the state does not give you the right to ignore the laws of the state.

Not my argument. My argument is that the Constitution does not preclude a President from ordering the military to engage in hostilities, even absent an express instruction from Congress.

While the president's responsibility for managing the US military in time of war and time of peace is still there, he does not have the power to decide how this military will be used at all times- any more than a general or colonel does. He cannot simply decide "okay, today we will deploy our bombers in Missouri, but tomorrow we will deploy them to Libya where they will drop bombs on someone I personally disapprove of."

Because that involves committing acts of war against a foreign country. And the decision to do that is not within his remit.

Ummm... actually... yeah, it is. The President is empowered to order American military forces commit acts of war against foreign countries. That's one of the duties of the office, actually.

What possible authority can Congress claim in saying that this is fine, except when it lasts for more than n days and hostilities are involved? In addition, the President is entitled to direct foreign affairs, including recognizing and negotiating with foreign governments.

The president is entitled to direct foreign affairs, but not to ratify treaties- which the Senate must do-

Right, and also to engage in Executive Agreements (not in the Constitution but accepted everywhere and actually more common in recent years than treaties for this reason).

and not to engage in acts of war as part of his foreign affairs. If he wants to commit an act of war against a foreign country, he should damn well have to seek out congressional approval.

Why?

All of them, quite frankly. The constitutionality of the War Powers Act has been questioned since it was first conceptualized. And not unjustly so. It manifestly restrains the President's ability to command the nation's armed forces.

Yes, it does... because of a constitutional requirement.

Which requirement? That Congress has the power to "Declare War?" What does that even mean?

The ability to command the armed forces is not the same thing as the ability to decide where they will fight. A general may be appointed "supreme commander" of the armies fighting in a region (say, the European Theater of Operations); this does not mean he gets to decide whether his armies will be fighting in that region. Instead, he is appointed to command those armies, to get them battle-ready, and to use them in battle if a battle is called for by outside authorities.

Like... the President, for example. That is what it means to be the Commander-in-Chief--you are the ultimate arbiter of the use of military force by the country.

In a democracy, as opposed to a military dictatorship, the army command must be responsible for their actions at every rank. There can be no general, or super-duper-general, with the power to commit the nation as a whole to war without being overseen by civilian control of the military.

This is very important to the difference between democracy and dictatorship. Or don't you agree, Ossus?

No--the distinction between a military dictatorship and a democracy is that, in a dictatorship, the Chief Executive is selected by the military. In a democracy or a Republic, the Chief Executive is selected by public vote.

Your entire argument is circular. It declares that the President cannot commit armed forces without Congressional approval because the President cannot commit armed forces without Congressional approval. You have not laid out the constitutional underpinnings for making such a statement.

This has not been the traditional interpretation of the US Constitution, however. Numerous Presidents have committed American armed forces to hostilities without Congressional authorization or approval, including such conflicts as the Philippines, Haiti, Cuba, Desert Storm, Lebanon, Liberia, and the Apache Wars, the last of which collectively dragged on for forty-five years.

The best argument that someone in your position could likely make is to argue that, absent your interpretation, Congress' power to declare war doesn't do anything, and is a constitutional nullity. While persuasive, this argument is not actually true. Like the ability to ratify treaties, a formal declaration of war drives numerous internationally recognized legal distinctions which an American President has no ability to change without Congress. For example, several elements of the Hague Convention turn on the formal declaration of war by one state upon another. But even in the Constitution itself, numerous passages turn on whether or not a war exists, such as the maintenance of state navies and the ability of an individual state to engage in warfare absent national decree, and the quartering of soldiers.

Moreover, had the Framers intended to prevent the President from ordering Americans to engage in hostilities without the consent of Congress they could easily have done this, as they did with States, which are barred from "engag[ing] in War, unless actually invaded, or in such imminent Danger as will not admit of delay." So why, in your view, did the Founders not so restrict the President? Note that Hamilton's oft-quoted statement on this is very unsatisfying when viewed in this context. While Hamilton suggested that the President would need to be able to "make" war without Congress' approval but should not have the power to "declare" war (which he therefore suggested limited him in a way in which a traditional monarch is not limited), why would the Framers have so conspicuously refused to restrict the President's ability to engage in war without Congress in the same way that they did to the states (i.e., to permit it only when in imminent danger)?

[Simon_Jester]

He is not entitled to commits acts of war on foreign territory, any more than any of his generals or colonels are.

Why? Because you say so?

Because this power of his is nowhere enumerated in the Constitution. It depends purely on your interpretation of the phrase "commander in chief." This interpretation does not come from any long-standing or respectable school of political theory or constitutional law. It comes from a pack of jumped-up Quisling-wannabes who decided in the last few decades to try and pretty up their desire to live under military dictatorship as the "unary executive."

Seriously, Ossus, you're being pathetic.

There are precedents for the idea of an official who, by virtue of the state's military necessity, assumes supreme command of the military and has the power to override normal laws and constitutional requirements. The Romans called them dictators.
[snip]
Moreover, the president can't even cite that precedent, because he is not a dictator.

Are you seriously citing to Roman tradition in an effort to argue that the actions of a US President are unconstitutional?

No. I am pointing out that:

1) There is such a thing as an absolute military dictator with the power to override the law in times of military necessity in a democracy, and...
2) The President of the United States is not such a person. His office does not grant him that power, and you would know this if you would quit taking hallucinogens before reading the Constitution.

No modern democracy has such an office, Ossus, with good reason. Only in your dreams of tyranny does such an office exist.

Nothing in the Constitution entitles the president to ignore the law by virtue of any rank he might have as "commander in chief." The mere trait of "being commander in chief" does not carry an automatic power to ignore laws, any more than carrying the rank of "field marshal" would. Being the highest-ranking military officer in the state does not give you the right to ignore the laws of the state.

Not my argument. My argument is that the Constitution does not preclude a President from ordering the military to engage in hostilities, even absent an express instruction from Congress.

Your argument is equivalent to what I implied your argument was. If the President has the power to fight undeclared wars by virtue of being commander in chief, then he has the power to ignore the Constitutional enumerated power of Congress to declare war. Because that power has, as a logical corollary, that if Congress does not declare war, the US military is not permitted to attack people.

The idea that Congress's enumerated power to declare war is some minor, superfluous epiphenomenon, irrelevant to what the US military actually does, is ridiculous. It makes no sense in terms of the original intent of the Founders, no sense in terms of the longstanding traditions of American constitutional law, and no sense in terms of the common-sense observation that laws do not contain trivial passages that can be ignored or treated as without substance.

While the president's responsibility for managing the US military in time of war and time of peace is still there, he does not have the power to decide how this military will be used at all times- any more than a general or colonel does. He cannot simply decide "okay, today we will deploy our bombers in Missouri, but tomorrow we will deploy them to Libya where they will drop bombs on someone I personally disapprove of."

Because that involves committing acts of war against a foreign country. And the decision to do that is not within his remit.

Ummm... actually... yeah, it is. The President is empowered to order American military forces commit acts of war against foreign countries. That's one of the duties of the office, actually.

Not without authorization, he isn't. You could maybe make an exception for self-defense, but not for wars of choice. "Commander in chief" simply does not mean "gets to invade people on a whim."

The president is entitled to direct foreign affairs, but not to ratify treaties- which the Senate must do-

Right, and also to engage in Executive Agreements (not in the Constitution but accepted everywhere and actually more common in recent years than treaties for this reason).

Such agreements are not binding and lack the force of law (which the Constitution grants to ratified treaties).

and not to engage in acts of war as part of his foreign affairs. If he wants to commit an act of war against a foreign country, he should damn well have to seek out congressional approval.

Why?

Because he is not a despot. Because civilian oversight of the military is important. Because the Constitution grants the power to declare war to Congress, and fighting undeclared acts of aggressive war is a war crime.

Take your pick.

Which requirement? That Congress has the power to "Declare War?" What does that even mean?

It means that, quite simply, the duty of formally deciding that the United States is at war and that hostilities may begin belongs to Congress. If the US is under direct, immediate attack one might make an exception to this- if bombs are falling, the men serving anti-aircraft guns should of course shoot back. But the decision to wage an aggressive war of choice belongs to Congress, not to the president.

The ability to command the armed forces is not the same thing as the ability to decide where they will fight. A general may be appointed "supreme commander" of the armies fighting in a region (say, the European Theater of Operations); this does not mean he gets to decide whether his armies will be fighting in that region. Instead, he is appointed to command those armies, to get them battle-ready, and to use them in battle if a battle is called for by outside authorities.

Like... the President, for example. That is what it means to be the Commander-in-Chief--you are the ultimate arbiter of the use of military force by the country.

No, it means you are the highest-ranking commander/officer/general/admiral/whatever of the nation's military.

That is not the same thing as being the person who gets to decide to fight a war. Except, of course, in tinpot military dictatorships, where the Supreme Generalissimo gets to make all decisions by virtue of commanding the army holding the rest of the state at gunpoint.

In a democracy, as opposed to a military dictatorship, the army command must be responsible for their actions at every rank. There can be no general, or super-duper-general, with the power to commit the nation as a whole to war without being overseen by civilian control of the military.

This is very important to the difference between democracy and dictatorship. Or don't you agree, Ossus?

No--the distinction between a military dictatorship and a democracy is that, in a dictatorship, the Chief Executive is selected by the military. In a democracy or a Republic, the Chief Executive is selected by public vote.

Your entire argument is circular. It declares that the President cannot commit armed forces without Congressional approval because the President cannot commit armed forces without Congressional approval.

This has not been the traditional interpretation of the US Constitution, however. Numerous Presidents have committed American armed forces to hostilities without Congressional authorization or approval, including the in the Philippines, Haiti, Cuba, Desert Storm, Lebanon, Liberia, and the Apache Wars, which collectively dragged on for forty-five years.

My argument is that these commitments of armed forces hinged on one of two conditions:

1) No recognized nation-state existed to participate in the war on the other side, as with the case of Filipino rebels or Apache tribes, to take two of the higher-profile examples. Or...
2) The president was ignoring the Constitution, and got away with it.

(2) is not necessarily a good thing, you see. I would argue that the president's assumed power to decide to bomb places has gone much, much too far. It is not healthy for our democracy, because it allow the president to more or less arbitrarily decide to fight a war somewhere, then attempt to justify destruction of civil liberties by asserting that we are "at war..." with opponents he decided to fight.

We have already seen the prototype of this in the "war on terror," which is totally undefined in terms of the size of the battlefield or the amount of time it will go on. Neither Bush nor Obama has ever made any serious, meaningful statement about when the "war on terror" will end, which effectively makes it a permanent state of emergency- a state of affairs totally corrosive and offensive to democratic principles.

My argument is that we would be far better off as a democratic nation if we rejected this absurd notion of the president as an elected tyrant with the power to raze nations on a whim. If we restricted the role of the US military to national defense, participation in wars that enjoy enough public support to receive a declaration of war, and operations short of war in pursuit of treaty obligations.

Moreover, had the Framers intended to prevent the President from ordering Americans to engage in hostilities without the consent of Congress they could easily have done this, as they did with States, which are barred from "engag[ing] in War, unless actually invaded, or in such imminent Danger as will not admit of delay." So why, in your view, did the Founders not so restrict the President? Note that Hamilton's oft-quoted statement on this is very unsatisfying with this context. While Hamilton suggested that the President would need to be able to "make" war without Congress' approval but not the power to declare war, why would the Framers not have placed similar restrictions upon the President's ability to engage in war without Congress (i.e., to permit it only when in imminent danger)?

Because at the time, there was no such thing as the United States Air Force.

Circa 1800, the US had effectively no ability to project significant military force without a large scale mobilization, one demanding enough cooperation from the states, the people, and the budgetary powers of Congress that it could not be done without Congress's consent. The US had no large standing army capable of springing into action against a foreign power at any moment, and the technology of the era wouldn't have made such a rapid attack possible in any case. Indeed, many of the Founders were very worried about the idea of large standing armies, precisely because of the fear that once that kind of military power was available, the temptation to use it for injustice would be irresistible.

This ties into Washington's concerns about foreign entanglements, into Jefferson's concerns about standing armies, and so forth.

But now, the US has a standing army, a powerful one. And the advance of technology allows this standing army (and air force) to be deployed to attack anyone at any time. So we are in a condition the Founders would not have wished for- one where it is physically feasible for the president to issue orders to devastate a nation, and have those orders carried out, on short notice.

Because Congress and the courts have not been rigorous about restraining the military in such situations, we have wound up with our military enforcing a de facto foreign policy of American imperialism with the president as emperor, while Congress's influence is largely limited to domestic policy.

I would argue that this has been a disaster for America, politically and economically. It has a lot to do with the poisonous incompetence that has wrecked our ability to handle domestic political crises intelligently. It's expensive as hell, the rewards are negligible, and it makes us precious few friends overseas. I think it would be great if we were to renounce this imperialism and imperial-president-ism, and impose exactly the kind of restraints you mention on the president's power to make war.

But these restraints would not have been seen as necessary in the 18th century, because the situation that made them necessary* didn't exist and wasn't foreseeable at the time.

*The situation in question being, again, that the US now has a huge, heavily armed, standing army. And this army has the power to attack any point on the globe in a matter of days, even with no additional funding or support from the home front beyond what is already under military control. Neither of those things was true until after the Second World War, and it is not a coincidence that the end of the Second World War was the beginning of America's adventures as a world empire.

[Lonestar]

Because this power of his is nowhere enumerated in the Constitution. It depends purely on your interpretation of the phrase "commander in chief." This interpretation does not come from any long-standing or respectable school of political theory or constitutional law. It comes from a pack of jumped-up Quisling-wannabes who decided in the last few decades to try and pretty up their desire to live under military dictatorship as the "unary executive."

Seriously, Ossus, you're being pathetic.

Great, I didn't know that you were a strict-Constiutionalist Simon.

[Master of Ossus]

Because this power of his is nowhere enumerated in the Constitution. It depends purely on your interpretation of the phrase "commander in chief." This interpretation does not come from any long-standing or respectable school of political theory or constitutional law. It comes from a pack of jumped-up Quisling-wannabes who decided in the last few decades to try and pretty up their desire to live under military dictatorship as the "unary executive."

Nonsense, it comes from an understanding of the traditional role of the President, his ability to order and direct American military forces, and from an understanding of constitutional construction in which Congress restricted states from doing precisely what you're claiming they didn't know how to do with the President.

No. I am pointing out that:

1) There is such a thing as an absolute military dictator with the power to override the law in times of military necessity in a democracy, and...
2) The President of the United States is not such a person. His office does not grant him that power, and you would know this if you would quit taking hallucinogens before reading the Constitution.

No modern democracy has such an office, Ossus, with good reason. Only in your dreams of tyranny does such an office exist.

Ignoring, of course, the fact that the United States has precisely such a position.

Your argument is equivalent to what I implied your argument was. If the President has the power to fight undeclared wars by virtue of being commander in chief, then he has the power to ignore the Constitutional enumerated power of Congress to declare war. Because that power has, as a logical corollary, that if Congress does not declare war, the US military is not permitted to attack people.

That's not remotely true--under no view of the Constitution has it been true that the US military "is not permitted to attack people" without a Congressional declaration of war. Even Hamilton railed against precisely this absurd interpretation of the Constitution, as did all of the other Framers who wrote on this subject.

The idea that Congress's enumerated power to declare war is some minor, superfluous epiphenomenon, irrelevant to what the US military actually does, is ridiculous. It makes no sense in terms of the original intent of the Founders, no sense in terms of the longstanding traditions of American constitutional law, and no sense in terms of the common-sense observation that laws do not contain trivial passages that can be ignored or treated as without substance.

Not my argument. It has serious constitutional repercussions, even in my view, because it governs other constitutional provisions. If these were so important that the Framers would write them into one place in the constitution, what makes you leap to the conclusion that these are "minor, superfluous epiphenomenon?"

Not without authorization, he isn't. You could maybe make an exception for self-defense, but not for wars of choice. "Commander in chief" simply does not mean "gets to invade people on a whim."

Your interpretation; NOT one which is compelled in the Constitution.

Such agreements are not binding and lack the force of law (which the Constitution grants to ratified treaties).

Bullshit. See United States v. Belmont.

Why?

Because he is not a despot. Because civilian oversight of the military is important. Because the Constitution grants the power to declare war to Congress, and fighting undeclared acts of aggressive war is a war crime.

Take your pick.

Let's take these last to first.

Fighting "undeclared acts of aggressive war" is not necessarily a war crime. At worst it would be a violation of domestic law.

Congress' ability to declare war is recognized even in my view of the Constitution, and it is meaningful.

Civilian oversight of the military still exists in my view of the Constitution--not only can Congress de-fund conflicts, but the President is an elected official.

Finally, the President is obviously not a despot in my view--I have no clue how you get this impression.

No, it means you are the highest-ranking commander/officer/general/admiral/whatever of the nation's military.

That is not the same thing as being the person who gets to decide to fight a war. Except, of course, in tinpot military dictatorships, where the Supreme Generalissimo gets to make all decisions by virtue of commanding the army holding the rest of the state at gunpoint.

So in your view, can the President can send American military advisers into another country in order to support a peacekeeping mission or as advisers for the recognized government or as observers to an ongoing conflict upon the invitation of a foreign power? If the peacekeepers are fired upon, can shoot back? Can he order in aircraft to protect the peacekeepers? Your view simply has nowhere near the nuance required by modern conflicts, even apart from its very questionable "Framers as selectively-blind" interpretation.

My argument is that these commitments of armed forces hinged on one of two conditions:

1) No recognized nation-state existed to participate in the war on the other side, as with the case of Filipino rebels or Apache tribes, to take two of the higher-profile examples. Or...
2) The president was ignoring the Constitution, and got away with it.

1. In the case of the Filipino rebels it was an obvious war of aggression, which your view specifically prohibits the President from engaging in.
2. In the case of the Apache tribes, another nation-state did exist--the Apaches were an independent nation state as recognized by several other countries and which the US recognized as a separate nation--both within the Constitution (where the President has the ability to negotiate with them just like he gets to negotiate with foreign powers) and by law.

If all of these Presidents were "ignoring the Constitution," it's kind of hard to understand the justification for declaring it unconstitutional today. It's not like a typical constitutional case in which the case sits on the boundary of what had been held to be constitutional before and the SCOTUS is called upon to adjudicate because there has been no line drawn, before.

Moreover, this fits squarely within the "political question" doctrine that I referred to earlier and which the SCOTUS refuses to adjudicate because the people are supposed to serve as the arbiters of the case.

(2) is not necessarily a good thing, you see. I would argue that the president's assumed power to decide to bomb places has gone much, much too far. It is not healthy for our democracy, because it allow the president to more or less arbitrarily decide to fight a war somewhere, then attempt to justify destruction of civil liberties by asserting that we are "at war..." with opponents he decided to fight.

My argument is that we would be far better off as a democratic nation if we rejected this absurd notion of the president as an elected tyrant with the power to raze nations on a whim. If we restricted the role of the US military to national defense, participation in wars that enjoy enough public support to receive a declaration of war, and operations short of war in pursuit of treaty obligations.

We have already seen the prototype of this in the "war on terror," which is totally undefined in terms of the size of the battlefield or the amount of time it will go on. Neither Bush nor Obama has ever made any serious, meaningful statement about when the "war on terror" will end, which effectively makes it a permanent state of emergency- a state of affairs totally corrosive and offensive to democratic principles.

This is just a red herring. No one cares if it's good or bad. We're just talking about what the constitution says. It's also, obviously, a political question.

Moreover, had the Framers intended to prevent the President from ordering Americans to engage in hostilities without the consent of Congress they could easily have done this, as they did with States, which are barred from "engag[ing] in War, unless actually invaded, or in such imminent Danger as will not admit of delay." So why, in your view, did the Founders not so restrict the President? Note that Hamilton's oft-quoted statement on this is very unsatisfying with this context. While Hamilton suggested that the President would need to be able to "make" war without Congress' approval but not the power to declare war, why would the Framers not have placed similar restrictions upon the President's ability to engage in war without Congress (i.e., to permit it only when in imminent danger)?

Because at the time, there was no such thing as the United States Air Force.

Oh. My bad. I had totally forgotten about the fleet of F-14's that Virginia was sitting on in 1789. Obviously that must have been what the Framers were thinking about.

Circa 1800, the US had effectively no ability to project significant military force without a large scale mobilization, one demanding enough cooperation from the states, the people, and the budgetary powers of Congress that it could not be done without Congress's consent. The US had no large standing army capable of springing into action against a foreign power at any moment, and the technology of the era wouldn't have made such a rapid attack possible in any case. Indeed, many of the Founders were very worried about the idea of large standing armies, precisely because of the fear that once that kind of military power was available, the temptation to use it for injustice would be irresistible.

The states had none of these things, either. Why would the Framers have been so concerned about limiting the states, but not the President?

[snip]
I would argue that this has been a disaster for America, politically and economically. It has a lot to do with the poisonous incompetence that has wrecked our ability to handle domestic political crises intelligently. It's expensive as hell, the rewards are negligible, and it makes us precious few friends overseas. I think it would be great if we were to renounce this imperialism and imperial-president-ism, and impose exactly the kind of restraints you mention on the president's power to make war.

But these restraints would not have been seen as necessary in the 18th century, because the situation that made them necessary* didn't exist and wasn't foreseeable at the time.

Okay, so maybe we need a constitutional amendment, but don't cloak your policy arguments in the guise of interpretation and use that to declare the President's actions to be unconstitutional.

[Bakustra]

Ossus, explain what exactly the power to declare war means in your version of the US Constitution. It appears entirely distinct from actual war-making, which you determine to solely be the power of the President. So what is it, then? It seems that you, too, need an amendment in order to explain what war is that Congress has the power to declare it, but has no authority whatsoever over the armed forces of the United States beyond the indirect power of the purse, which can itself be abrogated easily if the president can send the armed forces wherever he pleases to engage in hostilities with whoever.

What's interesting is that you embark on an confusion of is and ought. Simon is arguing for ought- there ought not to be a situation in the US where the president can send troops anywhere in the world to attack anybody. You are arguing that that is the case. The two are utterly incompatible, but you are simultaneously arguing for ought, that since it is the case currently, that it ought to be so, and that tradition alone can justify ever-greater centralization of power in the hands of one person and in one branch. But then again you say that good and bad are meaningless here and "no one cares" about them. That speaks for itself- you have no concerns for morality in law, and that alone ought to be sufficient condemnation.

Finally, a war of aggression is always a war crime under international law, so I don't know why you would deny that if you're trying to pretend that you are something other than a fascist.

[Bakustra]

GHETTO EDIT: While the argument over the intent of the framers is as mind-numbing as ever, what is your response to this excerpt from the writing of Article I(emphasis mine)?

"To7 make war"

[Note 7: 7 Crossed out "Mr. Dickenson moved". A considerable. blank space was left apparently for the insertion of the motion and the action upon St. This may have been Vote 312, Detail of Ayes and Noes, see the Journal above.]

Mr Pinkney opposed the vesting this power in the Legislature.8 Its proceedings were too slow. It wd. meet but once a year. The Hs. of Reps. would be too numerous for such deliberations. The Senate would be the best depositary, being more acquainted with foreign affairs, and most capable of proper resolutions. If the States are equally represented in Senate, so as to give no advantage to large States, the power will notwithstanding be safe, as the small have their all at stake in such cases as well as the large States. It would be singular for one- authority to make war, and another peace.

[Note 8: 8 See Appendix A, CCCXXVI.]

Mr Butler. The Objections agst the Legislature lie in a great degree agst the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.

Mr. M<adison> and Mr Gerry moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.

Mr Sharman thought it stood very well. The Executive shd. be able to repel and not to commence war. "Make" better than "declare" the latter narrowing the power too much.

Mr Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war.

This would seem to make any Originalist argument for the police-actions galore viewpoint an uphill struggle.

[Simon_Jester]

I basically agree, Bakustra. We've argued before, and will no doubt argue again, but I have no objections to your post above this one.

The quoted passage also ties into what I said earlier about strategic context- which Ossus breezily ignored with a crack about the Virginia Air Force. The Founders were working out a scheme for defense of a nation whose armed forces were dominated by militia and networks of forts. Raising large bodies of regular troops took a long time, and maintaining such bodies in peacetime was seen as deeply troubling and controversial.*

So on the one hand, there needed to be a mechanism to direct troops in defense of the nation in the event of an attack- communications were slow, Congress was not always in session and couldn't be assembled on short notice because of slow communications. On the other hand, if the nation was not in such danger. Absent that urgent need, the strategic decision of whether to fight a war or not properly belonged to the people and the republic, not to kings or dictators.

The Founders split the difference: the president could issue orders to the army, but did not have discretion to start wars, any more than some random colonel on the frontier could decide to up and stage a cavalry raid and trigger a war that way. Someone who did that would rightly expect to be court-martialled: being a military commander does not give you the authority to commit your nation to war without desperate justification (such as an enemy invasion).

*Look at the War of 1812; that was the Founders' version of America at war, for better and for worse.
___________

Now, there are a lot of issues where I would disagree with 200-year-old policy. But I think that there was a real, valid concern behind this decision in 1787 that still applies today- the corrosive effects of standing armies on democratic institutions. That problem is as old as Rome, if not as old as Athens. It can be kept under control by various means, but it can easily get out of hand.

While recent presidents' use of wartime 'emergency powers' to infringe on our liberties at home has been a lot more subtle than what the Founders mighthave envisioned, there's a common thread there. The command of powerful armies is important to the state, and dangerous in the hands of an ambitious man. The discretionary power to use those armies is even more dangerous, as the fall of the Roman republic, and of countless other republics throughout history, shows.

That discretionary power shouldn't be entrusted to any one man not kept under oversight.

I would argue that under the text of the Constitution which defines the offices of the president and the legislature, that power isn't entrusted to one man, isn't granted without oversight, and doesn't rest with the presidency. On that issue, I think that Mr. King had a point (taken from the page Bakustra linked to):

Mr. Mason 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".

On the Motion to insert declare -- in place of Make, <it was agreed to.>

... [Ayes -- 7; noes -- 2; absent -- 1.]

[Note: On the remark by Mr. King that "make" war might be understood to "conduct" it which was an Executive function, Mr. Elseworth gave up his objection <and the vote of Cont was changed to -- ay.>10

Consider the idea that "make war" means, essentially "conduct war," in the sense of "carry out operations." That is not the same thing as starting a war where no war existed.

It makes far more sense to draw a sharp line between execution of military operations (an executive function, obviously) and the decision to have such operations at all. The latter is a decision too important to be entrusted to one man, except in the most desperate of circumstances.

Practically all other democratic nations do it that way: the military command structure is separate from the civil government, and subordinate to it. The generals are responsible for planning military operations, but take their marching orders from the legislature- they cannot commit the state to war on their own initiative.

This strikes me as a very sensible arrangement. If the rest of the Constitution had been so sensible when it was drafted, we'd have a better country today.

Granted, the President has often ordered troops to commit acts of war on foreign soil without congressional approval. That doesn't impress me; constitutional provisions don't lapse for lack of enforcement.

Because this power of his is nowhere enumerated in the Constitution. It depends purely on your interpretation of the phrase "commander in chief." This interpretation does not come from any long-standing or respectable school of political theory or constitutional law. It comes from a pack of jumped-up Quisling-wannabes who decided in the last few decades to try and pretty up their desire to live under military dictatorship as the "unary executive."

Seriously, Ossus, you're being pathetic.

Great, I didn't know that you were a strict-Constiutionalist Simon.

My problem with the idea of a unary executive who gets to ignore laws because he is Commander in Chief is that Commander in Chief is a military title- equivalent to Field Marshal (which the US doesn't have, because we have the president as C. in C.), or the kind of bullshit "generalissimo" titles you get in banana republics.

Declaring that holding high military titles gives the president power to ignore the law basically amounts to saying that the US is a military dictatorship, one that just happens to hold elections for the title of Supreme Grand High Over-General. It spits on the idea of civilian control of the military by creating a military title that overrides civilian laws. It makes the president's military title more important, by way of giving him more power, than his civilian job does, since his civilian job doesn't put him above the law.

And when it comes to choosing between the Constitution and military dictatorship, I prefer the Constitution. So yes, I get pretty strict on that issue. If you want me to believe that the president has the power to ignore Congress on an issue where Congress is explicitly supposed to be calling the shots, you'd better have a damn good reason. "We don't have time to get an act of Congress to cover throwing a salvo of Tomahawks at Libya" isn't a damn good reason.

[Master of Ossus]

Ossus, explain what exactly the power to declare war means in your version of the US Constitution. It appears entirely distinct from actual war-making, which you determine to solely be the power of the President.

This is true in every single constitutional interpretation because the two are distinct constitutional powers.

So what is it, then?

It's a congressional declaration which triggers several other constitutional provisions.

It seems that you, too, need an amendment in order to explain what war is that Congress has the power to declare it, but has no authority whatsoever over the armed forces of the United States beyond the indirect power of the purse, which can itself be abrogated easily if the president can send the armed forces wherever he pleases to engage in hostilities with whoever.

How does that "abrogate" the "indirect power of the purse?"

What's interesting is that you embark on an confusion of is and ought. Simon is arguing for ought- there ought not to be a situation in the US where the president can send troops anywhere in the world to attack anybody. You are arguing that that is the case. The two are utterly incompatible, but you are simultaneously arguing for ought, that since it is the case currently, that it ought to be so, and that tradition alone can justify ever-greater centralization of power in the hands of one person and in one branch. But then again you say that good and bad are meaningless here and "no one cares" about them. That speaks for itself- you have no concerns for morality in law, and that alone ought to be sufficient condemnation.

Uhhh... no.

Welcome to a nation governed by laws, and not by the whims of its scholars.

You've got this totally backwards: I'm the one arguing that the law is revealed by a long tradition which dates, unbroken, back into the 19th century. Simon has no real answer for this, and I'm guessing that you do not, either.

Finally, a war of aggression is always a war crime under international law, so I don't know why you would deny that if you're trying to pretend that you are something other than a fascist.

Nonsense. What about wars which are fought under UN authorization? And if you're referring to the Kellogg-Brand Pact, this has been signed only by what? 30 countries? It's hardly a declaration of international law, but a treaty which is binding only upon its signatories, and in the US the issue would only be a possible violation of domestic law.

I basically agree, Bakustra. We've argued before, and will no doubt argue again, but I have no objections to your post above this one.

The quoted passage also ties into what I said earlier about strategic context- which Ossus breezily ignored with a crack about the Virginia Air Force.

Simon and Bakustra, I'm going to ask you this collectively because you both seem incapable of explaining it in isolation:

Why, if the Framers wished to limit the President to conducting wars without express congressional approval only to circumstances like the ones in which states are permitted to conduct wars independent of the Federal government, did they not impose restrictions like the ones they placed on states?

Note that Simon's answer (which I apparently "breezily ignored") is in fact deeply unsatisfying for precisely the reason that I pointed out: If the Framers didn't actually anticipate such circumstances because they could not have foreseen a circumstance in which the President was able to project power, how were they able to anticipate such circumstances with regards to individual states?

In short, the constitutional passages I cited earlier reveal that the Framers did recognize that this was a potential issue, and their resolution of it was to limit states' abilities to make war independent of congress. But as to the President the Framers imposed no analogous limitations. Why is this, in your view?

[Simon_Jester]

Simon and Bakustra, I'm going to ask you this collectively because you both seem incapable of explaining it in isolation:

Why, if the Framers wished to limit the President to conducting wars without express congressional approval only to circumstances like the ones in which states are permitted to conduct wars independent of the Federal government, did they not impose restrictions like the ones they placed on states?

...

In short, the constitutional passages I cited earlier reveal that the Framers did recognize that this was a potential issue, and their resolution of it was to limit states' abilities to make war independent of congress. But as to the President the Framers imposed no analogous limitations. Why is this, in your view?

[/quote]To begin, the restriction laid on the states reads:

"No State shall, without the Consent of Congress... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."

The states were, at this time, freestanding entities with their own militaries (state militia, mostly) and a prickly independence of their own. The Constitution sought to take the power of war- to fight wars, to declare wars, to engage in war in all its aspects- and centralize it in federal hands. To do this, the states had to be forbidden to engage in war, unless faced with an emergency that did not permit delay.

The states were placed under such binding restrictions because they considered themselves to be independent governments, or could easily decide to think of themselves as such. To prevent them from haring off on their own initiative, it was necessary to bind them in no uncertain terms- to forbid them from assembling permanent standing forces in peacetime, (elsewhere in Article I, Section 10), to forbid them from engaging in the kind of diplomatic agreements an independent country would make, and to forbid them to engage in war on their own initiative.

All this was done with the aim of binding the states' "foreign policy" into a unified front under federal control.


Now, why was the president not bound by similar terms? Because the president is not an independent government. He is the executive of a government, which is not the same thing- he cannot copy Louis XIV and say "I am the state," because he does not embody the state or the government in his person. He is merely responsible for seeing to it that the policies and laws of the government are carried out.

This is vitally important. The president does not embody the state in his person, he is merely responsible for seeing to it that it runs. The Founders did not wish to make the president into a king, or an elective tyranny, or a military dictator. They put a lot of effort into making sure that such a thing didn't happen, and a good thing, too- it gave us two hundred years of freedom from tyranny and the lovers of tyranny.

So, the president is not a government. His powers are not independent of the rest of the government of which he is a part. His responsibilities bind him to the rest of that government. This is why he "executes duties" rather than "ruling" or "reigning" as a monarch might. His duties are laid upon him by outside forces; he does not get to decide for himself what they are, any more than any other civil servant or military officer might. That job rightly belongs to the legislature, which the Founders consistently viewed as the most powerful branch in the government, which was the most powerful branch in the government for many years, and which they devoted far more time and effort to laying out.

The fact that the part of the Constitution devoted to organizing the legislature is nearly twice as long as the part devoted to organizing the presidency should tip you off to this. The Founders were crafting a republic run (like all other democratic governments in history) by its legislature, not a presidential dictatorship.

Therefore, in this self-consistent interpretation, there is no need to place special restraints on the president's powers to command the military. The implications are obvious to anyone not obsessed with making the president into a tyrant he should not and was never meant to be. The president does not need to be especially forbidden from committing acts of war against a foreign power because never would it be seriously considered that he should have the power to do so- other generals don't, not in any country with a functioning civilian government.

I mean, of course he can't simply order his troops to invade and conquer another country without approval from the civilian government. That's a routine burden on any military commander. Why would commanders "in chief" be any different?

Like any other holder of military rank, it is his place to issue orders, but not his place to decide where wars may be fought. "Commander in Chief" is nowhere stated to confer the power to decide whether wars are to be fought or not. It is no more special a rank than "field marshal" in this respect.

Put simply, this precedent has always applied. Only in countries ruled by an absolute dictator or monarch can one man decide to send the armies into battle, and then lead them himself. The president is not and was never intended to be a dictator or a monarch. He is an executive- the head of the civil service and seniormost marshal of the armies- not an autocrat. He was not supposed to be an autocrat, he was not made an autocrat, and a great deal of work went into making sure he would not be an autocrat.

[Bakustra]

Ossus, you ignored my second post. Ignored it entirely, despite it challenging your point of view altogether. Rather than go for the joke of pretending illiteracy on your part, I am going to say it outright: you are incredibly dishonest, deliberately refusing to address what people post. You have no right to condescend to anybody. Yet if I do what I am supposed to- press the red exclamation mark, undoubtedly you will wriggle away. Nematoda usually do. So instead I won't even bother with the slightest hint of respect. I won't even ask you to address what you ignored, since it seems certain that you will not bother with a good-faith response.

Now, falangist, you are evading the points you do pretend to address. You are also transparently doing this to make this into a matter of attrition, further evidence that you have no intention of arguing in good faith. What are the constitutional provisions that it activates? Why exactly ought declaring war be divorced entirely from making war? What is the purpose of that power, then?

See, if the president can order the armed forces to attack whomever with no recourse to Congress, why, then, he can simply nationalize corporations in the US by force and have them turn their output to the support of the armed forces. He can occupy foreign nations and parts of the US and plunder their economic output as well. This is something that your interpretations, wherein you say that the president has essentially unlimited authority over the US armed forces, says is A-OK, or at best in a legal grey area. Curiously enough, there are interpretations which say that this is absolutely wrong and illegal, because the President does not have unlimited authority over the armed forces. Of course, you deny that this is a matter of interpretation, which leads me to my next point.

You intimate that the interpretation you propose is fact. This is a common habit of yours. I will not bother to try and counter it. You must prove that the interpretation that you propose is indeed a fact and must be countered by amendment of the US Constitution (or its replacement, which would probably be easier). Go ahead, take as much time as you need. I doubt that you will be able to do so. So go ahead.

Statements like "welcome to a nation governed by laws" don't really make you look good. They make you look like you don't care about the outcomes of the law. In other words, if you posted that de jure discrimination was revealed in the law going back to the nineteenth century and went on to smug about how Simon and I wouldn't have an effective answer, you would be making a horrible, racist statement, and you would be a massive racist. Now, you're smugging about what is an incursion of despotism into the American political system. You know what that makes you? A despot!

The UN Charter specifically gives the Security Council the authority to decide whether a particular war is aggressive or not. Therefore, a war sponsored by the UN is almost certainly not aggressive, since the UN has authority to determine the aggressiveness of a war! Actually, I was deriving it from the precedent set by the Nuremberg trials, which would be binding if nothing else in international law is! Maybe you should just come out of the nationalist closet and admit that you don't think that international law should be binding!

Actually, Ossus (or rather Antonin Scalia), I specifically said that I find originalism mind-numbing. I realize that your tiny, torture-obsessed brain may not be able to comprehend this, so I will respond anyways. Read my second post in this thread, and then realize that you're resorting to a caricature of your beloved originalism, demanding that I use psionic powers to extract why they didn't use the exact same language for entirely different methods of framing!

Now, I'll lay this out in a different way than Simon, for the benefit of lurkers. Let's take a look at what the two clauses say. The first levies a restriction on the states, the second grants a power to Congress. Therefore, they are framed entirely differently- the one is saying what cannot be done (states cannot make war except in cases of immediate self-defense) while the other is saying what can be done (Congress has the power to declare war). In the English language in which the document was written, these two types of statement are distinct in form. We also have the transcripts of discussion, which tell us that the only reason Congress solely does not have the power to make war is that it would meet too infrequently in cases of immediate self-defense. In modern contexts, where it meets far more frequently and can assemble far more quickly, then it seems that this objection is removed and Congress ought to have all the war-making power. This is why originalism is idiotic and Ossus forfeits his human rights by advocating it.

[Simon_Jester]

My view on originalism is that while the views of the Founders are not sacred, we should take what they were thinking very seriously- because they had a lot of options available to them, and chose specific ones for reasons that were often very carefully thought out. They may be wrong, but they should not simply be shrugged off and ignored. When we go against the evidence of original intent, as is often going to be necessary, we should be sure that what we are proposing is more moral and more practical than what it replaces.

[Shroom Man 777]

Wow, it turns out following the Constitution to the letter only applies when you want to own stupid metal guncocks that bukkake bullets in people's faces, and if the Constipitution gets in the way of El Presidente unilaterally bombing brown people, the Founding Fathers can get fucked. lol, who knew?

[Master of Ossus]

Ossus, you ignored my second post. Ignored it entirely, despite it challenging your point of view altogether. Rather than go for the joke of pretending illiteracy on your part, I am going to say it outright: you are incredibly dishonest, deliberately refusing to address what people post. You have no right to condescend to anybody. Yet if I do what I am supposed to- press the red exclamation mark, undoubtedly you will wriggle away. Nematoda usually do. So instead I won't even bother with the slightest hint of respect. I won't even ask you to address what you ignored, since it seems certain that you will not bother with a good-faith response.

Pot calling the kettle black.

And, in case you haven't read the thread, I'll give you the benefit of the doubt and assume that you didn't realize that Hamilton made the exact same argument, which I addressed earlier, as such:

Moreover, had the Framers intended to prevent the President from ordering Americans to engage in hostilities without the consent of Congress they could easily have done this, as they did with States, which are barred from "engag[ing] in War, unless actually invaded, or in such imminent Danger as will not admit of delay." So why, in your view, did the Founders not so restrict the President? Note that Hamilton's oft-quoted statement on this is very unsatisfying with this context. While Hamilton suggested that the President would need to be able to "make" war without Congress' approval but not the power to declare war, why would the Framers not have placed similar restrictions upon the President's ability to engage in war without Congress (i.e., to permit it only when in imminent danger)?

Let me remind you that, in terms of interpretation, the actual written words always trump a declared statement from any individual legislator precisely because the actual text of the law is always superior since it is the only voice with which the actual body of law makers speaks as a collective whole. Even sponsor statements are of secondary importance.

Now, falangist, you are evading the points you do pretend to address. You are also transparently doing this to make this into a matter of attrition, further evidence that you have no intention of arguing in good faith. What are the constitutional provisions that it activates? Why exactly ought declaring war be divorced entirely from making war? What is the purpose of that power, then?

I have already addressed every single one of these arguments earlier in the thread. How can you accuse me of ignoring your posts even when you refuse to read the actual thread and realize that Simon and I already had precisely this discussion.

The best argument that someone in your position could likely make is to argue that, absent your interpretation, Congress' power to declare war doesn't do anything, and is a constitutional nullity. While persuasive, this argument is not actually true. Like the ability to ratify treaties, a formal declaration of war drives numerous internationally recognized legal distinctions which an American President has no ability to change without Congress. For example, several elements of the Hague Convention turn on the formal declaration of war by one state upon another. But even in the Constitution itself, numerous passages turn on whether or not a war exists, such as the maintenance of state navies and the ability of an individual state to engage in warfare absent national decree, and the quartering of soldiers.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

See, if the president can order the armed forces to attack whomever with no recourse to Congress, why, then, he can simply nationalize corporations in the US by force and have them turn their output to the support of the armed forces.

Hello non-sequitor.

He can occupy foreign nations and parts of the US and plunder their economic output as well.

You mean like the Philippines and the Apache Nation?

This is something that your interpretations, wherein you say that the president has essentially unlimited authority over the US armed forces, says is A-OK, or at best in a legal grey area. Curiously enough, there are interpretations which say that this is absolutely wrong and illegal, because the President does not have unlimited authority over the armed forces. Of course, you deny that this is a matter of interpretation, which leads me to my next point.

I don't deny that at all. I merely argue that my interpretation is superior based on the plain text of the Constitution. There is absolutely no reason to believe that the Framers were too dumb to recognize that this situation could crop up (as Simon argued). Rather, they specifically recognized this situation within the Constitution, but only limited the states and not the President. This curious omission carries no meaning in your interpretation, but my interpretation explains both this and eliminates constitutional "dead ground" because both the power to declare war and the President's war powers have constitutional meaning under my interpretation.

You intimate that the interpretation you propose is fact. This is a common habit of yours. I will not bother to try and counter it. You must prove that the interpretation that you propose is indeed a fact and must be countered by amendment of the US Constitution (or its replacement, which would probably be easier). Go ahead, take as much time as you need. I doubt that you will be able to do so. So go ahead.

Excuse me? You leveled this argument against me in the earlier thread and I rebutted it in great detail. Again, how can you accuse me of ignoring your (irrelevant) posts when you refuse to acknowledge mine which are directly on-point?

Statements like "welcome to a nation governed by laws" don't really make you look good. They make you look like you don't care about the outcomes of the law. In other words, if you posted that de jure discrimination was revealed in the law going back to the nineteenth century and went on to smug about how Simon and I wouldn't have an effective answer, you would be making a horrible, racist statement, and you would be a massive racist. Now, you're smugging about what is an incursion of despotism into the American political system. You know what that makes you? A despot!

Nonsense, it means that I have an understanding that our country is governed by law. Being governed by law is much better than being governed by some arbitrary and capricious whims of little shits like you, who obviously make no effort at all to understand the actual issues involved in your discussions, not least because laws are fungible. If you don't like the laws, you can always change them. But you first have to acknowledge what they actually are. Again, this is where you failed utterly in the other thread: you cannot possibly criticize international law if you're not even familiar with what it is.

The UN Charter specifically gives the Security Council the authority to decide whether a particular war is aggressive or not.

Where does it do this?

Therefore, a war sponsored by the UN is almost certainly not aggressive, since the UN has authority to determine the aggressiveness of a war! Actually, I was deriving it from the precedent set by the Nuremberg trials, which would be binding if nothing else in international law is! Maybe you should just come out of the nationalist closet and admit that you don't think that international law should be binding!

That's absolutely not the case. Have you forgotten so quickly my extensive discussion of International Humanitarian Law and its precepts? Or the Laws of Armed Conflict?

Actually, Ossus (or rather Antonin Scalia), I specifically said that I find originalism mind-numbing. I realize that your tiny, torture-obsessed brain may not be able to comprehend this, so I will respond anyways. Read my second post in this thread, and then realize that you're resorting to a caricature of your beloved originalism, demanding that I use psionic powers to extract why they didn't use the exact same language for entirely different methods of framing!

Nonsense, I am simply asking you to recognize that this is an intractable hole in your argument. It has nothing to do with "originalism." You can try and explain this even in the present. But however much you try, you will fail: there is no reason why any legislative body today would not be held to this same standard. If they are so worried about imposing limitations on one group but not another, any court in the world would assign meaning to this omission and would determine that it was an operative distinction. It really has nothing to do with originalism at all.

Now, I'll lay this out in a different way than Simon, for the benefit of lurkers. Let's take a look at what the two clauses say. The first levies a restriction on the states, the second grants a power to Congress. Therefore, they are framed entirely differently- the one is saying what cannot be done (states cannot make war except in cases of immediate self-defense) while the other is saying what can be done (Congress has the power to declare war). In the English language in which the document was written, these two types of statement are distinct in form. We also have the transcripts of discussion, which tell us that the only reason Congress solely does not have the power to make war is that it would meet too infrequently in cases of immediate self-defense. In modern contexts, where it meets far more frequently and can assemble far more quickly, then it seems that this objection is removed and Congress ought to have all the war-making power. This is why originalism is idiotic and Ossus forfeits his human rights by advocating it.

But what of the President's powers you dishonest shit? Remember that the President is the one whose powers are being defined. In other clauses, these include express limitations on the President's powers. Yours is a false distinction between these two concepts of granting and limiting powers because all constitutional powers are limited.

[K. A. Pital]

Rather, they specifically recognized this situation within the Constitution, but only limited the states and not the President.

That is just crazy as justification. States have armies (or had at the time). The President does not have his own army. He is merely a public servant. A general commands an army, he doesn't own it, unlike the state or a nation-state does.

[Master of Ossus]

To begin, the restriction laid on the states reads:

"No State shall, without the Consent of Congress... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."

The states were, at this time, freestanding entities with their own militaries (state militia, mostly) and a prickly independence of their own. The Constitution sought to take the power of war- to fight wars, to declare wars, to engage in war in all its aspects- and centralize it in federal hands. To do this, the states had to be forbidden to engage in war, unless faced with an emergency that did not permit delay.

The states were placed under such binding restrictions because they considered themselves to be independent governments, or could easily decide to think of themselves as such. To prevent them from haring off on their own initiative, it was necessary to bind them in no uncertain terms- to forbid them from assembling permanent standing forces in peacetime, (elsewhere in Article I, Section 10), to forbid them from engaging in the kind of diplomatic agreements an independent country would make, and to forbid them to engage in war on their own initiative.

A superficially appealing argument, but not a particularly convincing one. Recall that, under Hamilton's view, Article II was chiefly concerned with preventing the President from behaving as a king, and kings most certainly considered themselves to be their own independent governments at the time. Really, I don't find this a satisfying answer at all. Again, surely if the Framers were as concerned as you are about preventing the President from engaging in warfare (but simultaneously willing to compromise in specific circumstances), they could have instituted the same limitation on Presidents.

[snip]So, the president is not a government. His powers are not independent of the rest of the government of which he is a part. His responsibilities bind him to the rest of that government. This is why he "executes duties" rather than "ruling" or "reigning" as a monarch might. His duties are laid upon him by outside forces; he does not get to decide for himself what they are, any more than any other civil servant or military officer might. That job rightly belongs to the legislature, which the Founders consistently viewed as the most powerful branch in the government, which was the most powerful branch in the government for many years, and which they devoted far more time and effort to laying out.

I agree with most of the above (include the part I redacted for brevity).

The fact that the part of the Constitution devoted to organizing the legislature is nearly twice as long as the part devoted to organizing the presidency should tip you off to this. The Founders were crafting a republic run (like all other democratic governments in history) by its legislature, not a presidential dictatorship.

Therefore, in this self-consistent interpretation, there is no need to place special restraints on the president's powers to command the military. The implications are obvious to anyone not obsessed with making the president into a tyrant he should not and was never meant to be. The president does not need to be especially forbidden from committing acts of war against a foreign power because never would it be seriously considered that he should have the power to do so- other generals don't, not in any country with a functioning civilian government.

I disagree completely with your conclusion. Everywhere that the Framers discussed the issue they describe themselves as being worried precisely that the President would execute the types of powers and behaviors that you vilify. The elaborate system of checks and balances that they constructed verifies that they were worried about separating power into various constituent groups, but Hamilton and several others (including the ones cited by Bakustra) demonstrate that many of them were worried specifically about the President's powers of warfare being too great.

Mind you: I am not, nor have I ever, argued that your interpretation is inconsistent with itself. I do not, however, believe that it best fits the evidence of their intent, and moreover do not believe that it fits with the actual text of the constitution as well as mine does because I am not satisfied by the claims that the Framers were unaware of this issue. Rather, they seem to have been acutely conscious of it, and to have made a conscious choice as to their refusal to limit the President's powers in this particular area in the manner which you assert.

I mean, of course he can't simply order his troops to invade and conquer another country without approval from the civilian government. That's a routine burden on any military commander. Why would commanders "in chief" be any different?

Among other things, because they are accountable to the People: they are elected every four years.

Put simply, this precedent has always applied. Only in countries ruled by an absolute dictator or monarch can one man decide to send the armies into battle, and then lead them himself. The president is not and was never intended to be a dictator or a monarch. He is an executive- the head of the civil service and seniormost marshal of the armies- not an autocrat. He was not supposed to be an autocrat, he was not made an autocrat, and a great deal of work went into making sure he would not be an autocrat.

This is true in my interpretation as well, I simply do not see that the check that your view imposes upon the President is at all necessary to maintaining this division of power. Congress still controls (among other things) the upkeep of the military, and the People can still elect the President (or not). I think that these are more than adequate to prevent the types of abuses that you treat as if they are otherwise insurmountable, and you ignore other distinctions with monarchies and dictatorships--namely in the selection of leadership and limited terms which they serve, as well as the President's inability to finance military operations without Congress.

That is just crazy as justification. States have armies (or had at the time). The President does not have his own army. He is merely a public servant. A general commands an army, he doesn't own it, unlike the state or a nation-state does.

True. So?

[Bakustra]

Ossus, first of all, you're a known xenophobe who supports racial profiling, if we're going to skirt around the whole vendetta thing.

Second of all, let's take a gander at Article 39 of the UN Charter. We find that it says

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Third, you're being incredibly disingenuous. States are prohibited from engaging in war except in cases of immediate self-defense. Explain how the president can engage in war (seeing as he is an individual), such that a prohibition of his ability to do so is meaningful rather than idiotic. Explain how you are willing to accept the implication that the president has unlimited warmaking power, with declarations of war being a formality mostly useless in the modern day and age, but not the implication that the president has power to make war in cases of immediate defense but not in other cases. Here, let's have the whole text of all of these:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

Explain how "the president has unlimited warmaking power" is any more valid as an interpretation, given these statements, then "the president has sufficient warmaking power to defend the US". Tradition is not a valid answer here, because I am not interested (apart from the morbid fascination of how you can deny any other interpretation as opinion but your preferred one has the status of fact) in the current situation.

Fourthly, I don't think you understand what my point was. My point is that your argument, earlier in this thread, was that the sole constraint on the President's power over the military is the power of the purse, but he had unlimited power otherwise. You said this by saying that the President has roughly equivalent powers to the Roman dictator. My point then, is that with such power and with such validation, the President can circumvent that power, because according to your beliefs, it is all right for him to operate it by loot and plunder from outside the budget of the US Government, because he has unlimited power. I realize that you will deny this, and potentially move away from the endorsement of unlimited power without ever disavowing it. Either defend what you said, or repudiate it.

[K. A. Pital]

That is just crazy as justification. States have armies (or had at the time). The President does not have his own army. He is merely a public servant. A general commands an army, he doesn't own it, unlike the state or a nation-state does.

True. So?

So no special exclusion, akin to that made for individual states, is even necessary - the President has no armed forces of his own. That's the real reason why nobody cares to mention a person who doesn't own armies as opposed to the states, which do own armies. Not the fact that the President is somehow specifically exempt.

Among other things, because they are accountable to the People: they are elected every four years.

More accountability does not give anyone additional powers by default.

[Master of Ossus]

Ossus, first of all, you're a known xenophobe who supports racial profiling, if we're going to skirt around the whole vendetta thing.

Ad hominem fallacy. Moreover, this is false.

I have much more colorful names for you, Bakustra, which is made the more impressive by the fact that I actually know the meanings of terms that I apply to my opponents during discussion.

Second of all, let's take a gander at Article 39 of the UN Charter. We find that it says

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

And this doesn't fit with what I said precisely how?

You will doubtless argue that I am being dishonest, somehow, by pointing out that a finding that a war is not one of aggression is not required for it to be authorized by the UNSC, but wouldn't you agree that it's an interesting and important fact that a war of aggression is not disqualified from UNSC approval?

Third, you're being incredibly disingenuous. States are prohibited from engaging in war except in cases of immediate self-defense.

You moronic twit, I apply meaning precisely to the fact that the states are not specifically excluded from doing things that the President is not restricted from doing. This is just a plain meaning argument.

Explain how the president can engage in war (seeing as he is an individual), such that a prohibition of his ability to do so is meaningful rather than idiotic.

The President can instruct and direct the US armed forces to engage in a war.

Explain how you are willing to accept the implication that the president has unlimited warmaking power, with declarations of war being a formality mostly useless in the modern day and age, but not the implication that the president has power to make war in cases of immediate defense but not in other cases.

My view of it is that the President's powers are not unlimited. What part of this do you not understand?

Here, let's have the whole text of all of these:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

Explain how "the president has unlimited warmaking power" is any more valid as an interpretation, given these statements, then "the president has sufficient warmaking power to defend the US". Tradition is not a valid answer here, because I am not interested (apart from the morbid fascination of how you can deny any other interpretation as opinion but your preferred one has the status of fact) in the current situation.

We've been over this time and again, Bakustra.

The President is the Commander in Chief of the Army and Navy. There are no restrictions placed upon the President's ability to make war within this section of the Constitution, but precisely the sort of limits that you and Simon have argued should be read into the constitution to bind the President do appear elsewhere--you quoted the passage yourself with respect to the States. So what do we make of similar powers being extended to two different groups, but with restrictions and limits only on one of those groups?

So what can we gather from this? We know that the President has authority over the military: he is the Commander in Chief of the Army and Navy. We know that the Framers knew how to restrict military forces to operate only in the case of foreign invasion or "such imminent danger as will not admit of delay." So what are we to make of this omission? I assign significance to it; your argument is that it is totally without meaning.

So once again: If your interpretation is correct and the President has only sufficient powers over the military to defend the US, then why is the President not restricted in his use of the Army and Navy, as the states are of their forces?

Fourthly, I don't think you understand what my point was. My point is that your argument, earlier in this thread, was that the sole constraint on the President's power over the military is the power of the purse, but he had unlimited power otherwise. You said this by saying that the President has roughly equivalent powers to the Roman dictator. My point then, is that with such power and with such validation, the President can circumvent that power, because according to your beliefs, it is all right for him to operate it by loot and plunder from outside the budget of the US Government, because he has unlimited power. I realize that you will deny this, and potentially move away from the endorsement of unlimited power without ever disavowing it. Either defend what you said, or repudiate it.

Your claim is absolutely false. Only the Congress has the power to upkeep and maintain the military; not the President. Were the President to engage in such a "circumvention" as you claim would be possible (and then use this in a hilariously off-point moral diatribe), then this would be unquestionably unconstitutional.

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

The President has none of these powers.

So no special exclusion, akin to that made for individual states, is even necessary - the President has no armed forces of his own. That's the real reason why nobody cares to mention a person who doesn't own armies as opposed to the states, which do own armies. Not the fact that the President is somehow specifically exempt.

What are you talking about? States are prohibited from "engag[ing] in" war. The President "engage in" war if he instructs the forces under his command to do so.

Among other things, because they are accountable to the People: they are elected every four years.More accountability does not give anyone additional powers by default.

True, but it puts the lie to the (oft-repeated) claims that there are no limits on the President's powers, in my view, and that there are no distinctions between this view of the Presidency and a military dictatorship (since in military dictatorships neither of these limits exist). That is all that I was attempting to outline with that statement.

Moreover, I think that others are seriously understating the authority that other Chief Executives are given over their nations' respective military forces. For instance, Churchill's decision to attack Mers-el-Khebir was self-evidently a decision to engage in direct warfare with another nation, without the pre-approval of Parliament. It could be argued that England's safety was being threatened, at the time, but this is pretty tortured: the French fleets were sitting in port, had repeatedly assured the British that they would be scuttled before they were transferred. Moreover, it illustrates the hilariously easy circumvention of the kinds of checks and balances that Bakustra would assign: if the Executive is the one who decides that their nation's safety is in danger and that he must therefore act to defend the nation, then how does this constitute any form of effective check or balance in the first place?

[K. A. Pital]

True, but it puts the lie to the (oft-repeated) claims that there are no limits on the President's powers

The election limit is a rather separate question from limits on executive power. Congress, when elected, has "unlimited" power to declare war, but it is not related to the term of incumbency.

Moreover, I think that others are seriously understating the authority that other Chief Executives are given over their nations' respective military forces.

No arguments from other nations' systems may arise unless the system is identical to the US one.

For instance, Churchill's decision to attack Mers-el-Khebir was self-evidently a decision to engage in direct warfare with another nation, without the pre-approval of Parliament.

Churchill is a poor example. He had a great contempt for limiting military action, after all; he was a typical racist warmonger of the 1930s.

[Master of Ossus]

True, but it puts the lie to the (oft-repeated) claims that there are no limits on the President's powers

The election limit is a rather separate question from limits on executive power. Congress, when elected, has "unlimited" power to declare war, but it is not related to the term of incumbency.

Wow. Way to ignore the entire second half of that phrase, and the final ~2/3 to 3/4 of that sentence.

Here's what I wrote:

True, but it puts the lie to the (oft-repeated) claims that there are no limits on the President's powers, in my view, and that there are no distinctions between this view of the Presidency and a military dictatorship (since in military dictatorships neither of these limits exist). That is all that I was attempting to outline with that statement.

It is true that the elections of the President are a separate check from other limitations on Executive Power, but I was arguing against a viewpoint that ascribed to me the belief that there were no limits on Presidential power at all.

This came out of a long line of claims that my understanding of the Constitution made the President into a military dictator. My sentence pointed out that this was false, both because Congress and the Judiciary have powers that serve to check the Presidency and which do not exist in military dictatorships, and because the President is an elected official, and elections do not exist in military dictatorships.

No arguments from other nations' systems may arise unless the system is identical to the US one.

And where, exactly, were you when Simon started this line of the conversation by arguing that my view of the US system was unique among chief executives and therefore that my understanding of the Constitution was necessarily erroneous?

Churchill is a poor example. He had a great contempt for limiting military action, after all; he was a typical racist warmonger of the 1930s.

The example isn't of Churchill. It's of England. The UK, after all, didn't do anything after he had shelled the French out of the water at Oran and seized hundreds of French ships in English ports around the world. So, clearly, it's an exaggeration to say that the US Constitution's (as I believe it to have been written) permissiveness of a President to order the military to engage in aggressive actions towards other nations without legislative or popular approval would make the US unique among non-dictatorships. England held a very similar line, at least until very recently (even if it does not continue to hold to this understanding).

[K. A. Pital]

So, clearly, it's an exaggeration to say that the US Constitution's (as I believe it to have been written) permissiveness of a President to order the military to engage in aggressive actions towards other nations without legislative or popular approval would make the US unique among non-dictatorships.

I agree with that. I doubt that the US is "unique" here, permissiveness and dirty wars (e.g. war without declaration of war) have been everybody's business in the XX century. Although I would challenge the view of either French or British Empires as democracies. Their metropole voting system was a preposterous joke, most or a very large share of their subjects had no suffrage - roughly equivalent to the US in the age of slavery. I'd describe them... as if only New York, Washington and Chicago could vote, but not the entire US population.

This came out of a long line of claims that my understanding of the Constitution made the President into a military dictator.

Simon's dictator claim was related to the Roman dictator, who also had a term of service. That's not equivalent to a typical military dictatorship, which is when military officers take power.

[Simon_Jester]

Explain how "the president has unlimited warmaking power" is any more valid as an interpretation, given these statements, then "the president has sufficient warmaking power to defend the US". Tradition is not a valid answer here, because I am not interested (apart from the morbid fascination of how you can deny any other interpretation as opinion but your preferred one has the status of fact) in the current situation.

We've been over this time and again, Bakustra.

The President is the Commander in Chief of the Army and Navy. There are no restrictions placed upon the President's ability to make war within this section of the Constitution, but precisely the sort of limits that you and Simon have argued should be read into the constitution to bind the President do appear elsewhere--you quoted the passage yourself with respect to the States. So what do we make of similar powers being extended to two different groups, but with restrictions and limits only on one of those groups?

So what can we gather from this? We know that the President has authority over the military: he is the Commander in Chief of the Army and Navy. We know that the Framers knew how to restrict military forces to operate only in the case of foreign invasion or "such imminent danger as will not admit of delay." So what are we to make of this omission? I assign significance to it; your argument is that it is totally without meaning.

So once again: If your interpretation is correct and the President has only sufficient powers over the military to defend the US, then why is the President not restricted in his use of the Army and Navy, as the states are of their forces?

For the same reason the Constitution does not include a provision restricting generals from ordering their own commands to attack a foreign country. The president's power to command the army is not unlimited because it's not his army. It belongs to the state, not him. In his role as commander in chief he is still subject to civilian oversight on the grand strategic level, which is why grand strategy in the broadest sense (the decision of who to fight) is given to Congress with the power to declare war.

The states possess or could possess their own armies; therefore their ability to form and to field such armies has to be given specific limits. This became all the more important once the Bill of Rights clarified the assumption that the states have all powers not specifically denied them by the Constitution: if the states are to be categorically stopped from doing something, there must be a specific constitutional provision to say they can't do it.

Whereas the president has no such universal powers. He is not assumed by default to be able to do everything the Constitution doesn't explicitly forbid him from doing. Therefore, there does not need to be a specific clause to stop him from doing things that usurp the enumerated powers of Congress. And launching an invasion without reference to Congress is such a usurpation, creates a de facto state of war, and will predictably trigger a de jure state of war as soon as the other nation gets around to noticing they've been attacked, the way the Japanese surprise attack in 1941 did.

So, I repeat, there is no need to explicitly limit the president's power to start a war on his own initiative, for this power to be limited in a way perfectly consistent with the Constitution.

Moreover, there's also the problem that your position (any limit on the president's warmaking ability is an unconstitutional limit on his position as 'commander in chief') leads to reductio ad absurdum.

Suppose we have a new president who is sensitive about his height. The leader of China calls him "Shorty." He decides to launch a preemptive attack on China with nuclear weapons, then orders the military to invade and occupy what's left of China. As I understand it, this would be A-OK under your interpretation to do so 'because it is his constitutional right as C-in-C'. He ought not be punished for this in any way, other than being voted out of office in 4 years time, assuming we're all still alive in 4 years' time after provoking a nuclear war with China. Unlike lying about having received a blowjob, this act, which would kill tens of millions of people in both China and the US, would not even warrant impeachment, because it is 100% legal.

Basically, given that "commander in chief" is a power immune to regulation that limits its usage, it would seem that stopping the president from using the armed forces whimsically would be unconstitutional and thus wrong.

Now, I'm sure you aren't actually saying such a thing. So could you please clarify on what restraints you think can lawfully exist to prevent the president from having a psychotic episode and deciding to nuke China?

What are you talking about? States are prohibited from "engag[ing] in" war. The President "engage in" war if he instructs the forces under his command to do so.

He does not. He is not a warring party in his own right, because he is not a government.

Moreover, I think that others are seriously understating the authority that other Chief Executives are given over their nations' respective military forces. For instance, Churchill's decision to attack Mers-el-Khebir was self-evidently a decision to engage in direct warfare with another nation, without the pre-approval of Parliament. It could be argued that England's safety was being threatened, at the time, but this is pretty tortured: the French fleets were sitting in port, had repeatedly assured the British that they would be scuttled before they were transferred. Moreover, it illustrates the hilariously easy circumvention of the kinds of checks and balances that Bakustra would assign: if the Executive is the one who decides that their nation's safety is in danger and that he must therefore act to defend the nation, then how does this constitute any form of effective check or balance in the first place?

Churchill was in a somewhat different position for a number of reasons. The most conspicuous one is that in a parliamentary democracy, the head of government comes from the ranks of the legislature. Churchill was leader of the Government, duly appointed by Parliament, which could freely remove him from office at any time, for any reason or none.

This made it possible for Parliament to immediately punish Churchill for any act which displeased them- at certain times during the war there were motions to remove him from office, made purely because of certain parties' dissatisfaction with his management of the war. And this was totally legal, and Churchill was thus obliged to defend his conduct in the House of Commons, because he was officially a servant of Parliament and the king, not their master.

This is totally different from the system of presidential democracy we have in the US, and has implications for the executive branch's power. Since the executive can be recalled and disavowed at any time by the legislature, there do not need to be so many explicit constitutional limits on his power. As long as the legislature remains in session, he can simply be removed any time he exceeds his mandate, whereas the president can only be removed if he commits a crime.

A prime minister can have fewer hard limits on the uses of his power so long as any specific violation of his power can get him fired on short notice. Responsibility is forced on him, and before he can make any really critical decision, he is extremely well advised to consult with at least the leading figures of Parliament, many of whom are already part of his own cabinet because of the way parliamentary democracy works. If he doesn't do so, he runs the risk of being kicked out of office and replaced.

Historically, Churchill did exactly that in major decisions. In this case, in his own words:

p. 231-232
Those of us who were responsible at the summit in London understood the physical structure of our island strength and were sure of the spirit of the nation...

...The War Cabinet never hesitated. Those Ministers who, the week before, had given their whole hearts to France and offered common nationhood, resolved that all necessary measures should be taken."

p. 237:
"On July 4 [the day after the attack] I reported at length to the House of Commons what we had done... I spoke for an hour or more that afternoon, and gave a detailed account of all these sombre events as they were known to me. I have nothing to add to the account which I then gave to Parliament and to the world... I therefore read to the House the admonition which I had, with Cabinet approval, circulated through the inner circles of the governing machine the day before...

"The House was very silent during the recital, but at the end there occured a scene unique in my own experience. Everybody seemed to stand up all around, cheering, for what seemed a long time.

This is the point at which, had they been displeased with Churchill's conduct, they could easily have thrown him out of office, made apologies to the Vichy French state, and picked a new government less inclined to commit what neutral states could reasonably perceive as an act of war. Given the choice, they decided not to do so.

This is vitally important to understanding the differences between parliamentary and presidential democracy. Note that Churchill casts his description of the decision in terms of "us," "the Cabinet," and so on. This is because his decisions were made in constant consultation with other members of the cabinet and of Parliament, and indeed there was a great deal of overlap between the two. Churchill may have been supremely responsible for all decisions, but he did not make those decisions alone and his power to make those decisions flowed along a 'pipe' created by the legislature's choice to make him Prime Minister. Thus, executive actions were (and are) subject to continuous legislative review in a parliamentary system.

The absence of this review in a presidential system means that there must be more limits on the president's ability to make important decisions on his own initiative, simply to prevent one man from controlling too much power and making a mockery of the constitutional system. Restraints on the budget, on the making of treaties and on declarations of war, are critical to this process.

[Zinegata]

A useful reminder:

If people waited for Congress to pass some kind of law to allow the Libyan intervention, the law likely wouldn't have been passed by now and the Libyan rebels would be mostly dead or on their way to death camps.

The president was given specific executive powers for a reason: He needs to be able to respond to ongoing crisis swiftly before catastrophe strikes. That includes being able to direct the country's military forces in case of a sudden attack. There's a question whether or not foreign intervention for reasons other than self-defense counts (i.e. the Libyan intervention), but I'm no legal expert on its current state... albeit historical precedent (i.e. Panama) seem to favor it being "legal".

The Congress by contrast is a legislative body. It's supposed to take its time and have debates in order to craft the best laws for the country. While Congress is supposed to maintain some checks and balances against the Executive branch, it comes mostly in the form of budgetary control. If Congress really wanted to, they can cut funding to ensure that the president doesn't have money to engage in wars.

So, to me, Congress having the "power to declare war" is not actually compatible with its role in the American government. I would submit that the intent of this power was to ensure that only Congress had the power to commit the United States to a large, long-term military conflict that would tie up the majority of the nation's wealth and power. But for smaller interventions - operating within the pre-allocated budget given by the Congress - the president does in fact have the authority to commit US forces into action as head of the executive branch.