Is the War Powers Act Constitutional?

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The forthcoming World War III seemed so long ago that it seems most people have forgotten about it. At the very least, the opening of the impeachment trial and the last Democratic debate has dampened interest in this pivotal issue.

Every presidential candidate should have to openly state their position on foreign policy. We have two war parties in Washington with political opportunity separating them at key moments. Republicans howled when Barack Obama bombed Libya without Congressional authorization while Democrats silently watched. Of course, George H. W. Bush suggested he only needed to give Congress a courtesy call before invading Iraq in 1991. Democrats rightly saw this as an abuse of power and a violation of the Constitution.

Where does the hit on Soleimani fit?

Democrats insist Trump violated the War Powers Act of 1973 and recently passed a resolution in the House condemning the move. Republicans responded by declaring that the War Powers Act is unconstitutional. Constitutional scholar John Bolton insisted it needed to be repealed. Great legal mind Sean Hannity agreed, and Donald Trump then Tweeted Bolton’s opinion and insisted everyone should pay attention.

These legal heavyweights think that the act places far too many limits on presidential military action.

Richard Nixon famously vetoed the Act when it was passed for that reason.

Are the Republicans correct? Yes, but not because it illegally constricts presidential action, but because it unconstitutionally enlarges it.

The War Powers Act allows the president to engage in hostilities for sixty days without any congressional authorization so long as he notifies Congress of such action. In other words, Congress has illegally granted the executive the ability to “make war” without Congressional authorization.

That issue was hotly debated at both the Philadelphia Convention and in the State ratifying conventions.

Only a handful of the founding generation thought the president should be able to unilaterally “make war” and they were quickly shut down. When opponents of the document complained that the president wielded too much power of the purse and the sword, the proponents of the Constitution insisted he would not have anything close to the authority of the King of Great Britain.

Even Alexander Hamilton said as much in Federalist No. 69.

To make this short and sweet, the proponents of the document argued the Constitution did not create an American king with unlimited power of the sword.

Again, the “proponents” of the Constitution said this, not those who opposed the document.

That is how it should be interpreted.

I discuss this issue in detail in Episode 282 of The Brion McClanahan Show.

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