The United States of America is considered to be the leading country in terms of defining democracy and as a superpower. America is globally recognized because of its type of governance and administration that gives priority to the needs of the people locally and internationally. As a global superpower, America holds powers that are critical to the issues and matters that influence and affect global peace and interaction. However, the one factor that stands out in the involvement of America is its participation in wars. American history reveals how much the country has participated in wars that have faced the earth even those experienced today. The war factor is one that is closely attributed with the Americans and often, it is perceived to be a presidential authority to declare and terminate wars. This paper will explore the war factor in the governance structure of America’s administration and clearly draw out on which executive authority possesses the ultimate power to declare war under the American administration based on the American Constitution and other legislations. This will further be analyzed using the works by John Yoo and Lou Fisher who present their articulated analysis of the war power in the American government.
A Distillation of Each Scholar’s General Argument
War powers in the American Constitution under Article I Section 8 Clause 11 have become an area of contention between the presidency and the Congress. This is an issue that continues to be debated even under the current presidency and administration of President Donald Trump where the powers of the president over the declaration of war remains questionable and the role of the Congress continues to be challenged. The positions held by the authors John Yoo and Lou Fisher depict different arguments that are centered on the understanding of the power of war as provided in the relevant statutes and subject to both historical and the occurrence of the 9/11 terror attacks against the United States.
John Yoo in his book presents an interesting approach to the consideration of the power of war as it is understood and implemented in the United States. Ideally, Yoo (2005) argues that the power of war should be more flexible as opposed to the current status which is rigid in terms of the persons allowed to call for war as postulated in the American Constitution. The legal position regarding the authority that can render the American armed forces to initiate war is the Congress. The American military may be the first to attack the enemy under the authority of the president only after the Congress gives due authorization.
According to Yoo, this is a rigid approach to the determination of who can declare war. The events that surrounding the 9/11 attacks availed the opportunity that would have had the American administration to react in terms of securing the security of the people. However, it would have required that the Congress to come together and analyze the situation before deciding whether or not it was prudent for the military to initiate attacks (Yoo, 2005). Practically, while this is adhering to the law, the practicability of the circumstances amount to the needed meeting of the Congress to be a rather waste of time in the moment of crisis. Therefore, the president in this regard should be able to have the authority that grants him the discretion to declare war without having to rely on the authorization of the Congress.
Lou Fisher, on the other hand, presents a differing argument in his work. Ideally, he stands firm on his ground that the law and provisions of the American Constitution regarding the war powers should not be altered at any given point. These powers should be spelled out with clarity whereby, the emphasis is placed on the advocacy of ensuring that the Congress is the only body that has the capacity to call for war (Fisher, 2004). This stern position is vested in the fact that, allowing the president to declare war at his discretion would be detrimental to the well-being of the military but also on the people.
Fisher’s argument is further affirmative with the position of the founding fathers when they were drafting the Constitution whereby, following debates, the powers of war were categorically granted to the Congress and not the president. In addition to this, the Vietnam War would have had fewer casualties had the Congress been allowed the opportunity to analyze the matter and determine whether or not the United States really needed to initiate a war (Fisher, 2004). As a consequence of the then sitting President’s decision to call the United States to war, the number of American casualties were many and the backlash of the people was sufficient evidence that the war was unnecessary and costly on the American people. Hence, in his argument, Fisher stipulates that the decision to call for war should be solely left upon the hands of the Congress just as it is stated in the American Constitution as well as the War Powers Resolution of 1973.
Important Subordinate Contentions on the President’s Ability to Declare War
The origin of the Constitutional provision that vests the power to declare war upon the Congress goes to prior to when the Constitution was framed. In his writing during the American War with Mexico in 1848, Abraham Lincoln noted that America should not share any comparison with monarchies whereby, power was solely left to the kings whose decisions were practically oppressive to the people rather than being helpful in nature (Fisher, 2004). Therefore, the Constitution Convention should avoid the circumstance of having one man holding the power to oppress the people. Abraham Lincoln was discouraging the members of the Convention from vesting the important power of war on an individual.
In the Constitutional drafting, however, the bone of contention was primarily was on which office was fit to have the authority to call for war. The consideration of having the presidency to have these powers was ultimately denied as it was perceived as a measure of developing a monarchy (Fisher, 2004). The legislative body was considered but consideration of the interaction between the House and the Senate thus nullified the legislature. Thus, this power was left to the Congress with changes made in terminology whereby, the initial wording being ‘make war’ changed to ‘declare war’ (Yoo, 2005). However, due to the concerns that Congress may not be sitting, the drafters at the constitution convention created an exception that the President would ‘make’ war decisions during emergencies for safety reasons.
The American Constitution under Article 2 Section II states ‘The President shall be Commander in Chief of the Army and Navy of the United State.” This provision is clear in the fact that, it provides the president with unlimited powers as the Commander in Chief of the Armed Forces. However, at no point does it grant the president any powers to declare war. It is often the assumption that the President being the Commander in Chief has the authority to declare war at his discretion. On the contrary, this position is disputed by the provisions of the War Resolution Act of 1973. Ideally, the Act provides that the United States President can only act under the statutory authorization of the Congress with regard to the initiation of war. Aside from such a situation, the president may send the American Armed Forces into action in the event that a national emergency situation is created by the enemy through an attack against the United States, its territories or its possessions (Yoo, 2005). In essence, the President may act independently only when the attack is initiated against America therefore, rendering the enemy as the primary initiator of the war.
Fisher thus notes that there are instances where the presidents have acted contrary and beyond their powers. His example vested in the Vietnam War that saw President Johnson undervalue the constitution so as to not appear as a soft individual as well as not to negatively impact his political career and fortune with reference to the withdrawal of eh United States troops from Vietnam (Fisher, 2004). Fisher adds that the presidents in their capacity have used statements that have nonetheless been detrimental to the overall security of the people as they failed to respect the Constitutional provisions relating to war declaration.
The Role of the Congress in Terms of the Framers’ Intentions and the Actual Text of the Constitution
In the drafting of the Constitution, war declaration was an area that raised a series of debates over which branch would suffice to hold the power. In a bid to ensure that America did not emulate their British colonizers, the constitution convention took into due consideration the fact that granting power to one individual would eventually be detrimental to the sovereignty the country (Yoo, 2005). Further, it was the position of the Convention of the Constitution that matters of war needed public interaction through the representatives who would ideally discuss the necessity and either approve and or denies the authorization of the military engaging in war.
According to Yoo, the making of the American constitution was mostly challenged with debates surrounding international policies involving the signing and ratification of treaties and in particular, the role to be played by the president regarding calling for and terminating international wars involving the country. Ideally, Yoo notes that the primary focus of the convention was on the security of America (Yoo, 2005). Therefore, the intention of the Convention was to purposely avoid the misinterpretation of the laws and provide clarity in the definitions and descriptions of the laws accordingly. In essence, the position of the Congress should not be confused with the role that would thus be played by the President as an executive.
The actual text of the Constitution regarding the role of the Congress is provided under Article 1 Section 8 Clause 1 which specifically states “The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules conquering Captures on Land and Water;..” This provision in its direct understanding places defines the responsibilities and powers of the Congress. In this directive, it would be misleading to consider or to purport that the president as the leader of the armed forces can make any decisions surrounding the declaration of war (Fisher, 2004). On the contrary, the president under the War Resolution Act may thus address an attack against the country 1for 60 days without the authorization of the Congress (Section 4 (50 U.S.C. 1543). However, the president is limited to the provided number of days and cannot go beyond without the Congress authorizing further.
In essence, Congress is the executive body that can declare war just as purported by Fisher in his emphasis on constitutionality and not because it will make affirmative decisions concerning war. The stance of the constitutional convention was to avoid a monarchy state at all costs. Therefore, in separating the executive, legislative and judicial powers and clarifying the roles and powers of each was to maximize on sobriety.
The Logic behind Each Scholar’s Argument
Fisher argues that the importance of constitutionality has to be upheld for the sake of promoting the sovereignty and supremacy of the American Constitution. In separating the three areas of government, the drafters present at the constitutional convention were aiming at avoiding any influential activities that may hinder the proper execution of respective for the benefit of building the American society (Fisher, 2004). Further, denying the president the authority to call for war at his discretion was focused on maintaining the democracy of the people and allow for the views of the people through their representatives to be heard and considered before making any decisions.
Yoo, on the other hand, is of the stance that, the constitutionality behind granting the power of war to the Congress is not misplaced. However, there are circumstances in which, the consideration of having to wait upon the Congress may be detrimental to the American people as was the case after the 911 attacks (Yoo, 2005). Practically, the rigidity of the power of war being vested on the Congress makes it difficult for the United States to act accordingly in the event that it has to defend itself (Yoo, 2005). Ideally, in making the provision on the declaration of war flexible whereby not only the Congress bears the power my suffice to render it possible for the United States to have a better footing in emergency situations. The president may declare war in emergency situations as the rest of the branches of government ideally craft means and ways that will ensure that the United States has better ground on the war.
Evidence Adduced to Support These Arguments
Fisher in support of his argument cites the outcome and consequences of the actions of President Johnson following the Vietnam War. Ideally, the Vietnam War was a period in which the Constitutional provisions surrounding the declaration of war were violated due to personal reasons and the fact that the President did not want to appear weak in the face of war (Fisher, 2004). Rather than adhering to the required and suggested directive to have the United States military troops being withdrawn from Vietnam, President Johnson defied the law and had the American troops remain in the war at the expense of the American people and the lives of the military personnel. Ideally, the United States Congress was against the American participation in the war as it was essentially unnecessary and would be expensive on the American people (Fisher, 2004). The backlash from the people was evidence enough that the decision of the president was uncalled for and highly disadvantageous to the American troops and people. In this regard, it would have been more prudent to let the Congress have their way to have the troops withdrawn.
Yoo in his argument uses the events that occurred during the 9/11 terror attacks. In his argument, Yoo opines, the rigidity of the laws surrounding the call to war added to the risks of further attacks as the country awaited the authorization of Congress on whether the military should react to the attacks or not (Yoo, 2005). Leaving executive to decide on emergency situations only simply places American security at risk. Further, the delay in the determination of the actions to be taken grants the enemy an upper advantage of being ahead of the American military in terms of planning further attacks (Yoo, 2005). The laws should thus be more flexible to make it possible for the United States to initiate war at any time they face attack.
Logical Weakness the Arguments
Both Yoo and Fisher present logical arguments that are in support of their claims surrounding the power of war in the United States. However, these arguments have reasonable weaknesses. Fisher advocates firmly for Constitutionalism and the implementation of War Resolution Act of 1973. In his argument, he holds that, in observing these legislations, the Constitution as the rule of law is upheld. Further, due consideration of the consequences of the war on the Americans and their economy are looked into thoroughly before the Congress opts to deny or approve for war. However, the weakness in this argument is that it is based on the assumption that the Congress as representatives of the people will act in the favor of the people and take into consideration the different factors that would be at the core of the decision. This is a primary weakness as much of the decision is vested on one body that is also prone to be influenced and have its decision swayed by the greater majority.
Yoo argues that the laws need to be more flexible. This argument is primarily weak because the flexibility of the laws will only create a loophole to have the laws violated. Further, the different branches of the government will have their independence compromised rendering the decision making a tedious task. This is a primary weakness as it does not provide how the flexibility would be implemented and how the branches of government would be directed to ensure that the power of war is administered accordingly to the benefit of the people.
Conclusion
The war powers are critical in the American government. It is essential to understand that the powers that are associated with the determination of war and peace are upon the Congress and not the presidency. The stances of both Fisher and Yoo reflect on the confusion and the need for clear understanding of these powers over which body has the Constitutional right to control war. Nonetheless, the authors present a viable argument for and against the Congress being the body in control. This analysis is thus informative in the understanding of what constitutes the powers or war and the potential outcomes that may accrue from poor implementation of the powers on the American people as well as their economy.