Fall 1987, Volume 4.2
Review Essay

HOWARD BALL

To Chain the Dog of War: The War Powers of Congress in History and Law Francis D. Wormuth and Edwin B. Firmage, with Francis P. Butler, contributing author. Dallas: Southern Methodist University Press, 1986, xi+347 pp. $27.50.

To Chain the Dog of War is an excellent book for our time, i.e., the era of Irangate and the 200th anniversary of the creation of the U.S. Constitution. The late Professor Wormuth and Professor Firmage, two distinguished scholars of American constitutional law, have crafted a scholarly review of the employment, by Congress and the President, of the War Power. They have focused on the constitutional, that is, legitimate uses of power to initiate war, including constitutionally questionable presidential initiatives and the limits of congressional delegation of the war power to the President.

The theme, clearly spun out in the book through a meshing of political theory, public law, and public policy concepts, is an exceptionally important one in 1987. The Constitution, embodying the twin concepts of checks and balances and the separation of powers, clearly separates the power to initiate war (Congressional) from the power to conduct war (Executive). However, since 1950, the President has claimed for himself the power to initiate and conduct war without the consent of Congress--witness Korea, Indochina, the Mideast, Latin America, and Irangate. Firmage and Wormuth are greatly concerned about this inexorable movement away from a political system of separate institutions sharing power to one in which the Chief Executive as the nation's Chief Steward, in the age of nuclear war, has claimed the right to move unilaterally in the name of national security.

Left unchecked by voices arguing for constitutional balance between the Chief Executive and the Congress, this tendency toward presidential domination, given a "conjunction of circumstances, the office and the man may produce" another "Mussolini, Hitler, Franco, Stalin"--other Chief Executives who had "faithfully fulfilled the promises of power." Powerful, frightening words from these two scholars! The "Constitution," they conclude, "offers the nation and the world some protection from the potential of such a conjuction, through the dispensation of the power to declare and make war, but that protection is only as strong as the will of the legislative and judicial branches to invoke and enforce it."

The theme is clear and shocking: The U.S. Constitution is a prescription for the legitimate use of power by political branches of government. Separated constitutional institutions share power and check and balance each other's use of power, thus preventing the unadulterated, unconstitutional use of power--called tyranny by James Madison in the Federalist Papers. Article I, Section 8 grants to Congress the "power to declare war." Article II clearly labels the President the Commander-In-Chief of the Armed Forces. The legislature initiates war while the executive, as the "highest officer in a chain of command," is charged with successfully waging the war.

The Constitution, since the advent of the nuclear age, has not been followed in the area of war-making. Congress has not initiated war since 1941. Presidential actions, left largely unchecked by other political agencies, have functionally voided the very essence of the Constitution as a document that was established to constrain the untrammeled use of power by one of the branches of government. Presidential and Executive branch intrigues (Irangate being only the latest in a series of such clandestine and unconstitutional activities by members of the Executive branch), are uncovered by accident and, generally, after the damage has been done. And worse, this tendency to set aside the Constitution has been heralded by some academics and politicians as the right way for our system to go. Finally, if left unchecked, this unconstitutional dominance of the President in the area of war-making may very well involve America in a calamitous, nuclear war.

These two constitutional scholars carefully trace the development of the separation of the war-declaring and the war-implementing powers of the Congress and the President. Except for a situation where America is under attack, i.e., an Act of War by an enemy, the President has to await a declaration of war from Congress before he can initiate any military action anywhere. Congress and the Chief Executive, to the time of the conflict in Korea, essentially followed the constitutional mandates. There were numerous Declarations of War as well as Conditional Declarations of War and Limited Declarations of War initiated by Congress and implemented by the Chief Executive, as Commander-In-Chief, throughout our history up to 1950.

Occasionally, as the authors indicate, presidents went to Congress seeking a Declaration of War and were rebuffed by the national legislature--the practical workings of the constitutional system of checks and balances. "Through the early twentieth century, the Chief Executive recognized the jurisdiction of Congress in Acts of War." Indeed, the "Commander-In-Chief" language in Article II, was a centuries old title in 1787 that did not--and does not--carry with it the "power of war and peace."

As for the allegation, heard in 1950 and afterwards, that the President has frequently exercised this power to make war without congressional authorization, the authors have reviewed the 137 such alleged occasions and have concluded that "relatively few of the 137 cases . . . were ordered by the President. Many of them were trivial actions undertaken by a naval officer in a distant port on his own responsibility." They conclude with these two observations: Prior to 1950, ". . . in only one to two dozen cases, Presidents have personally made false claims of authorization, either by statute or treaty or by international law." Since 1950, as there is no "sustained body of usage to support such a claim, it can only be audacity or desperation that leads the champions of recent presidential usurpations to state that 'history had legitimated the practice of presidential war-making.'" In any event, as Justice Felix Frankfurter wrote, in 1940, "illegality cannot attain legitimacy through practice."

The authors return to the Constitutional period to underscore the perception held by Madison and his contemporaries that the executive "is merely ministerial"; that his actions in battle presuppose the existence of laws to be executed. Lest Wormuth and Firmage be accused of being apologists for Attorney General Edwin Meese's "original intent" concept, it should be noted that the authors, like Justice Hugo Black, accept the reality of timeless societal evils (as well as the frailties of human nature) that make the words of the Bill of Rights and the words of Article I (regarding war making) just as important today as they were 200 years ago.

Wormuth and Firmage, again and again, return to the central theme of the value of separation of powers and checks and balances in foreign policy and in war-making decision processes. While Congress may delegate some powers, the delegation is legitimate only if a policy is enunciated and standards are established in order to measure and judge subsequent presidential actions. While they point out that Congress cannot delegate a strictly legislative power such as the power to declare war, they note that, in Indochina, both Congress and the Courts abdicated their constitutional responsibilities to share power and to check the actions of the President. Ominously, they write, "The rule against delegation of legislative power is our only legal guarantee of the continuance of a republican government."

What Johnson and Nixon did in Indochina, usurpation of the legitimate powers of the Congress, the Reagan Administration has continued to do in many parts of the world. For the authors, the Reagan Administration epitomizes the "Imperial Presidency," i.e., the Chief Executive with unilateral control of the war power. Reagan's forces are active world-wide, usually in the absence of, or contrary to, congressional authority. There are ideological struggles with the "evil empire" of Communism in Latin America and the Middle East. Reagan, the authors maintain, has acted unconstitutionally and the Congress "has been unconstitutionally generous in allowing" these events to take place.

How can Congress reassert itself and assume a primary role in the war-making process? Wormuth and Firmage state that "Now more than ever Congress must assume its proper constitutional role in controlling the war powers." The legislators must rein in the President in one of five possible ways:

1. tighter budgetary control of military and armed services expenditure;
2. greater use of the power to advise and consent in foreign policy matters;
3. clearly expressed disapproval of presidential actions that are unconstitutional;
4. challenging executive actions in the courts and having a committed judiciary, using judicial review, to examine the issues on the merits;
5. impeachment of a Chief Executive who acts unconstitutionally in these areas.

Whether the legislators will respond to this serious constitutional challenge is a perplexing question. The authors are not sanguine about the character of the legislative response based on events in war-making politics since 1950.

Given the fact that we do not have "Ideal Types" as president, the characteristics of our presidents are suspect. Those who would become president are obliged to make a series of choices between principle and expediency. Thus tainted, they are, in Madison's words, "not angels" when they come into the White House with all its perquisites of power. The majority of our presidents, claim Wormuth and Firmage, "have not come within a bowshot" of the Ideal Version of the Presidential Statesman.

But that is precisely the virtue of our Constitution. It was written, with its various checks on unrestrained power, with our less than noble assortment of presidents (and other policy makers) in mind. Power must be made to check power. Our political system works, our republican system exists, when checks and balances and separation of powers are in place and working. In the war-making arena, Congress must participate substantively. If not, all may soon be lost.

To Chain the Dog of War is an outstanding piece of sholarship on an extremely timely subject. The authors have reviewed the case law, the public policy on war-making, and the political theory of constitutionalism and have written a superb statement attesting to the value of the constitutional system of separation of powers and checks and balances. Their theme is an eye-opener; it should be, for they are focusing on matters of war and peace, on nuclear annihilation. We must return to constituional principles, they write, thereby ending the rapid drift away from our republican form of government.

To Chain the Dog of War sharply focuses on the systemic response to presidential illegality. Wormuth and Firmage, in this bicentennial year of the Constitution, have made a significant contribution to the constitutional literature with this book. They have examined an issue, war-making and presidential accountability, that appears on the front pages on an almost daily basis. They have done it very well. And they have left us with an important message: Congress must reassert itself in the area of war-making and it must do so very quickly.