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Reforming the War Powers Relationship Between Congress and the President in the Post-Trump Era

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Reforming the War Powers Relationship Between Congress and the President in the Post-Trump Era REFORMING THE WAR POWERS RELATIONSHIP BETWEEN CONGRESS AND THE PRESIDENT IN THE POST-TRUMP ERA Scott S. Barker1 “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”2 The American people have spoken and they have relegated Donald Trump to a one-term presidency. Much has already been written about his norm-busting conduct as the forty-fifth President of the United States, and there is certainly more to come. Many, if not most, of the books published thus far fall into the “tell all” genre, written by people who were “in the room” and designed to describe and attempt to explain his frequently erratic behavior and its impact on the well-being of the Republic.3 An important and serious standout in this cascade of commentary is the recently published book, After Trump – Reconstructing the Presidency,4 a bipartisan product of a collaborative effort by two highly-credentialed and experienced presidential lawyers from opposite ends of the political spectrum, Bob Bauer and Jack Goldsmith. Bauer served in President Barack Obama’s Office of White House Counsel and was legal counsel to the 2020 Biden presidential 1 Scott S. Barker is a 1970 distinguished graduate of the United States Air Force Academy and a Rhodes Scholar. While studying at Oxford University he earned a Master’s degree in Russian history. Barker served on active duty as an intelligence officer for five years, with assignments in Southeast Asia and the Pentagon. In 1978, he resigned his commission and entered Harvard Law School graduating cum laude in 1981. Barker has practiced civil litigation in Denver for the past 39 years and is a Fellow of the American College of Trial Lawyers. An avid student of the Constitution, he has authored two books on presidential impeachment, IMPEACHMENT A POLITICAL SWORD and THE IMPEACHMENT QUAGMIRE. This Article is adapted from the manuscript of his latest book on the Constitution, which addresses the war powers relationship between congress and the president. 2 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring) (enjoining President Truman from seizing steel mills during the Korean War). 3 Elizabeth A. Harris & Alexandra Alter, Trump Books Keep Coming, and Readers Can’t Stop Buying, NY TIMES (Aug. 31, 2020), https://www.nytimes.com/2020/08/31/books/trump-books.html. 4 See generally, BOB BAUER & JACK GOLDSMITH, AFTER TRUMP: RECONSTRUCTING THE PRESIDENCY (2020). 2 Denver Law Review Forum [3-21-2021] campaign.5 Shortly after his inauguration, President Biden appointed Bauer as co-chair of a bipartisan commission on Supreme Court reform.6 Goldsmith is a Harvard Law School professor and a well-known conservative legal scholar, who served in the Department of Justice’s Office of Legal Counsel (OLC) under President George W. Bush.7 Bauer and Goldsmith suggest reforms of the presidency across a broad spectrum of issues, the need for which has been highlighted by President Trump’s conduct as our Chief Executive. One of those issues, addressed in Chapter Twelve of their book,8 touches on a topic the Author has been researching for the past two years: the war powers relationship between Congress and the President. Reforming this relationship should be a matter of national priority. This Article builds on the dialogue in After Trump and presents arguments in the Author’s forthcoming book publication.9 Why is now the time for the United States to prioritize rebalancing the war powers relationship between Congress and the President? Arguably, the country and its political leaders are at capacity combatting the COVID- 19 health crisis and rebuilding the economy devastated by the pandemic. First, reviewing U.S. history reveals that war is inevitable; the country has been at war for ninety-three percent of its existence.10 The constitutional machinery for deciding when and where United States will fight the next war—and how long it will remain fighting it once begun—needs to be repaired before it’s necessary to use it again. Second, and equally important, is the fact that the presidency’s arrogation of war powers since World War II is the center-piece of expanded executive power across the entire breadth 5 KAREN FREIFELD, Biden Legal Adviser Preps for End Game as Election Nears, REUTERS (Oct. 30, 2020), https://www.reuters.com/article/us-usa-election-bauer/biden- legal-adviser-preps-for-end-game-as-election-nears-idUSKBN27F1G5. 6 Tyler Page, Biden Starts Staffing a Commission on Supreme Court Reform, Politico (Jan. 27, 2021, 2:52 PM), https://www.politico.com/news/2021/01/27/biden-supreme- court-reform-463126. 7 JACK GOLDSMITH, http://jackgoldsmith.org/about/ (last visited Feb. 3, 2021). 8 BAUER & GOLDSMITH, supra note 4, at 281-314. 9 SCOTT BARKER, THE KINGS OF WAR – HOW OUR MODERN PRESIDENTS HIJACKED CONGRESS’S WAR-MAKING POWERS AND WHAT TO DO ABOUT IT (forthcoming publication 2021). 10 CHRISTAN OORD, Believe it or Not: Since Its Birth The USA Has Only Had 17 Years of Peace, WAR HISTORY ONLINE (Mar. 19, 2019), https://www.warhistoryonline.com/instant-articles/usa-only-17-years-of-peace.html. 3 Denver Law Review Forum [3-21-2021] of American government and politics.11 If we don’t reverse that trend, we may one day wake up to realize that, as Justice Felix Frankfurter warned in 1952, with the slow unchecked disregard of the restrictions that are meant to fence them in, U.S. Presidents have become elected autocrats.12 The Constitutional Moorings To understand the necessity for reform it is essential first to review the war powers regime established by the framers of the Constitution and compare it to the drastically altered view of that regime held by modern Presidents. Article I, section 8, of the Constitution grants Congress the power to “declare war,” to “raise and support armies,” and “to provide and maintain a navy.”13 The one and only war power assigned the President is contained in Article II, section 2: “[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United Sates.”14 While the Constitution does not specify the Commander in Chief’s duties and powers, it clearly does not give the President the power to declare war. The debates at the Constitutional Convention in the summer of 1787, and during the ratification process that followed, make it clear that the founders did not want a single person, namely the president, to have the power to commit the nation to war. South Carolinian Charles Pickney’s statement (recorded in James Madison’s detailed notes) before the delegates on June 1, 1787, captures the sentiment of the assembly. He “was for a vigorous Executive but was afraid the Executive power of (the existing) Congress might extend to war and peace, which would render the Executive a monarch, of the worst kind, towit [sic] an elective one.”15 During the Pennsylvania ratification convention, James Wilson, who was also a framer and with the benefit of the completed document, was more concrete than 11 MATTHEW WAXMAN, Presidents and War Powers, LAWFARE (Nov. 15, 2018, 2:29 PM) (book review) https://www.lawfareblog.com/presidents-and-war-powers. 12 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952). 13 U.S. CONST. art. I, § 8, cl. 11-13 14 U.S. CONST. art. I, § 2, cl. 1. 15 Diary entry from James Madison (June 1, 1787), in THE RECORDS OF THE FEDERAL CONVENTION OF 1787, VOL. I hist. ns. 64-65 (Max Farrand ed., 1911), [hereinafter Farrand, Vol. I]. 4 Denver Law Review Forum [3-21-2021] Pickney. Wilson assured his fellow Pennsylvanians that “[i]t will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”16 George Washington was steeped in the founding generation’s theory and practice of war-making. He was Commander in Chief of the Continental Army during the Revolutionary War, presided at the Constitutional Convention, and was the first President.17 Writing in 1793, Washington succinctly captured the key role played by Congress in deciding on war: “[t]he Constitution vests the power of declaring war with Congress; therefore, no offensive expedition of importance can be undertaken until they have deliberated upon the subject, and authorized such a measure.”18 As Washington knew well and as the Constitution’s text reflects, the framers distributed the war powers between Congress and the President. With the exception of the necessity to defend against a sudden attack, the Constitution gives Congress the power to make a collective decision on whether the Nation should go to war.19 Once declared by Congress, the President, as Commander in Chief of the armed forces, takes the lead in conducting the war, subject to Congress’s continuing powers of the purse and to raise and support armies.20 From 1789 to 1950, as the framers intended, Congress made the decision to go to war. During that period, Congress passed and the President signed, eleven formal declarations of war relating to five wars: the War of 1812 (James Madison); the Mexican War (1846, James K. Polk); 16 Charles A. Lofgrent, War-Making Under the Constitution: The Original Understanding, 81 YALE L.J. 672, 685 (1972) (quoting James Wilson).
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