Obama: 'President Does Not Have Power Under Constitution to Unilaterally Authorize a Military Attack'

March 30, 2011 - 5:05 AM
Jeffrey: Obama's 'Empty Words': Our Constitution

President Barack Obama

President Barack Obama at the National Defense University in Washington, D.C. on March 28, 2011. (AP Photo/Charles Dharapak)

President Barack Obama shares at least one thing in common with one of the lesser Founding Fathers. He and Pierce Butler, a South Carolina delegate at the Constitutional Convention, both flip-flopped on their interpretation of the Constitution's war power.

The difference between Obama's flip-flop and Butler's is that Butler's was defensible. In fact, it can now help contemporary Americans understand exactly where the Framers intended the war power to reside.

You see, Butler took the wrong position at the Constitutional Convention itself, during the actual debate on the war power--before it and other elements of the document were finalized and sent to the states for ratification.

He then flipped to the correct position, before his state ratified the Constitution, when he took it upon himself in the South Carolina legislature to briefly explain how the Constitutional Convention had settled the war-power issue.

Obama, by contrast, unambiguously took the correct constitutional position when he was running for president--almost 220 years after the Constitution was ratified--then turned around and took an indefensible position two years into office as commander in chief.

Obama's convenient change in position now justifies his own actions that exceed the constitutional limits on presidential power.

"The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation," Obama told the Boston Globe in a Dec. 20, 2007, interview.

"As commander in chief," Obama continued, "the president does have a duty to protect and defend the United States. In instances of self-defense, the president would be within his constitutional authority to act before advising Congress or seeking its consent."

This is exactly the Framers' understanding of the war power.

As mentioned in this column last week, and clearly explained in Louis Fisher's book "Presidential War Power," the Constitutional Convention debated the war power on Aug. 17, 1787. The draft before the convention gave Congress the power "to make war."

South Carolina's Charles Pinckney wanted to narrow the power to just the Senate. "The Senate would be the best depositary, being more acquainted with foreign affairs, and most capable of proper resolutions," he said, according to James Madison's notes from that day.

Fellow South Carolinian Pierce Butler then suggested the war power be given not to the Senate -- but to the president. "The Objections agst the Legislature lie in a great degree agst the Senate," said Butler. "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."

It was after Butler spoke that Madison himself and Elbridge Gerry of Massachusetts offered an amendment, moving "to insert 'declare,' striking out 'make' war; leaving to the Executive the power to repel sudden attacks."

Roger Sherman of Connecticut, agreeing with the intent of Madison and Gerry's amendment, said, "The Executive shd. be able to repel and not commence war." But he still liked the verb "make" to "declare."

At that point, Gerry rebuked Butler for proposing to give the president the war power, saying he "never expected to hear in a republic a motion to empower the Executive alone to declare war."

Madison and Gerry's language was approved and became part of the Constitution. Congress was given the power to start wars, and as Madison himself put it, the president was left the "power to repel sudden attacks."

Pierce Butler -- the very man who had suggested giving the war power to the president -- soon demonstrated he understood that his view had been defeated at the convention and that the Constitution sent to the states for ratification denied the president the power to initiate hostilities.

On Jan. 16, 1788, when the South Carolina legislature met to approve a ratifying convention for that state, there was a discussion of the Senate's power under the proposed Constitution to try impeachments. As an aside to this, Butler brought up the war power.

"It was first proposed to vest the sole power of making war and peace in the Senate; but this was objected to as inimical to the genius of a republic, by destroying the necessary balance they were trying to preserve," said Butler, according to Jonathan Elliott's "The Debates in the Several State Conventions on the Adoption of the Federal Constitution" (which is conveniently posted online by the Library of Congress).

"Some gentlemen were inclined to give this power to the president," said Butler (not mentioning that he had been of this party), "but it was objected to, as throwing into his hands the influence of a monarch, having an opportunity of involving his country in war whenever he wished to promote her destruction."

In his Monday speech explaining his unilateral decision to intervene in Libya's civil war, President Obama said nothing about our Constitution and cited no actual or imminent threat to the United States that he was trying to repel or defend our people against. Had he not acted, Obama said, "The writ of the United Nations Security Council would have been shown to be little more than empty words, crippling that institution's future credibility to uphold global peace and security."

And with that, Obama reduced our Constitution to empty words.