[Editor's note: CNSNews.com first published this piece in 2011, when President Barack Obama ordered the U.S. military to intervene in Libya's civil war without seeking or gaining authorization from the U.S. Congress.]
(CNSNews.com) -After studying the constitutional language governing the use of military force and the debates that the Framers had on the issue, Joe Biden determined that the Founding Fathers had vested the power to authorize even the limited use of military force in the Congress not the president---unless it was necessary for the president to act swiftly to repel an attack on the United States or to rescue U.S. citizens.
Biden derided the opposite position—that the president could use military force without congressional authorization—as a “monarchist” view of presidential power.
That was in 1998, however, when Biden was in the Senate.
Today, Biden serves as vice president to a commander in chief who has just committed the U.S. military to an action in Libya that was authorized by the U.N. Security Council but was never even so much as debated in the U.S. Congress let alone put to a vote.
Nor has the president argued that the aim of the military action in Libya is to repel an imminent attack on the United States or rescue U.S. citizens.
“The rationale for vesting the power to launch war in Congress was simple,” Biden said in a Senate speech delivered on July 30, 1998. “The Framers' views were dominated by their experience with the British King, who had unfettered power to start wars. Such powers the Framers were determined to deny the President.”
Article 1, Section 8, Clause 11 of the Constitution says: “The Congress shall have power … To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”
After summarizing this language, the debate over it at the Constitutional Convention and the treatment of it by Presidents George Washington and John Adams and the early Supreme Court, Biden determined it was impossible to conclude anything other than that the president could not use force without prior congressional authorization unless it was necessary to “repel a sudden attack.”
Indeed, this was exactly the language used at the Constitutional Convention by James Madison and Elbridge Gerry when they offered a successful amendment to the draft Constitution—which, as originally written, would have granted Congress alone the power to “make war.”
“Mr. [James] Madison and Mr [Elbridge] Gerry moved to insert ‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel sudden attacks,” said James Madison’s notes from the Constitutional Convention.
“Mr Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war,” said Madison notes.
“Mr. [George] 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,’” said Madison’s notes.
“On the Motion to insert declare--in place of Make, it was agreed to,” Madison recorded in his notes at the Constitutional Convention.
In his speech to the Senate in 1998, Biden accurately summarized the notes of the Constitutional Convention.
“The original draft of the Constitution would have given to Congress the power to ‘make war.’ At the Constitutional Convention, a motion was made to change this to ‘declare war.’ The reason for the change is instructive,” said Biden.
“At the Convention, James Madison and Elbridge Gerry argued for the amendment solely in order to permit the President the power ‘to repel sudden attacks,’” said Biden. “Just one delegate, Pierce Butler of South Carolina, suggested that the President should be given the power to initiate war.”
Citing Federalist No. 69, Biden noted that Alexander Hamilton, who among the Framers was perhaps the greatest champion of a strong executive, argued that the Constitution gave the president the authority to direct the military in action only after that action was authorized by Congress.
“Even Alexander Hamilton, a staunch advocate of Presidential power, emphasized that the President's power as Commander in Chief would be ‘much inferior’ to the British King, amounting to ‘nothing more than the supreme command and direction of the military and naval forces,’ while that of the British King ‘extends to declaring of war and to the raising and regulating of fleets and armies--all which, by [the U.S.] Constitution, would appertain to the legislature,’” said Biden.
“Given this,” Biden concluded, “the only logical conclusion is that the framers intended to grant to Congress the power to initiate all hostilities, even limited wars.”
Biden gave this speech laying out the Framer’s original understanding of the meaning of the war power to explain why he was introducing legislation that would replace the War Powers Resolution, enacted in the 1973, with a new law designed to prevent the president from indefinitely committing U.S. forces to a military engagement without congressional authorization. Biden’s proposed act also spelt out the conditions under which Biden believed the president—using his authority to “repel a sudden attack”—might launch a military action without prior congressional approval.
“One fundamental weakness of the war powers resolution is that it fails to acknowledge powers that most scholars agree are inherent Presidential powers: to repel an armed attack upon the United States or its Armed Forces, or to rescue Americans abroad,” said Biden in his 1998 speech.
“My legislation,” he said, “corrects this deficiency by enumerating five instances where the President may use force: (1) To repel attack on U.S. territory or U.S. forces; (2) To deal with urgent situations threatening supreme U.S. interests; (3) To extricate imperiled U.S. citizens; (4) To forestall or retaliate against specific acts of terrorism; (5) To defend against substantial threats to international sea lanes or airspace.”
Biden did not say that the president could use a UN resolution, as opposed to an act of Congress, to justify military action. In fact, he specifically criticized President Harry Truman—a Democrat—for going to war in Korea after that war had been authorized by the UN Security Council, but not by the U.S. Congress.
Biden, in fact, accused Truman of taking what Biden called the “monarchist” view of the president’s power to use military force.
“[W]hat I call the ``monarchist'' view of the war power,” said Biden, is “the thesis that the President holds nearly unlimited power to direct American forces into action.
“The thesis is largely a product of the Cold War and the nuclear age: the view that, at a time when the fate of the planet itself appeared to rest with two men thousands of miles apart, Congress had little choice, or so it was claimed but to cede tremendous authority to the executive,” said Biden.
“This thesis first emerged in 1950, when President Truman sent forces to Korea without congressional authorization,” said Biden.
On June 27, 1950, after North Korea invaded South Korea, the U.N. Security Council passed Resolution 83, recommending “that the Members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area.”
That same day, President Truman ordered U.S. forces into Korea without seeking congressional authorization.
According to the Congressional Research Service, Senate Republican Leader Robert Taft (Ohio) said of Truman's action: “The President simply usurped authority in violation of the laws and the Constitution, when he sent troops to