Remembrance of Powers Lost

U.S. President Roosevelt asked Congress to declare war on Japan on December 8, 1941. Photo via Associated Press

Remembrance of Powers Lost

Congress is surrendering its Constitutional powers to the president.

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Behold the constitutional powers of the legislative branch in the realm of foreign affairs: to declare war, to raise an army and maintain a navy, to ratify treaties.

The Founding Fathers weren’t as generous with the president: He is commander in chief, but in deciding matters of war and peace, lawmakers are to keep the chief executive on a short leash, lest he resemble a monarch.

Congress has shirked those weighty constitutional responsibilities, contends Jim Webb, a recently retired Democratic senator from Virginia. On an alarming number of occasions since 9/11, George W. Bush and Barack Obama have thumbed their noses at Capitol Hill. Cowed by political pressure or suffering from collective amnesia, Congress hardly whimpered.

In 2008, President Bush signed a wide-ranging Strategic Framework Agreement with Iraq. The Bush administration deftly avoided labeling the agreement a “treaty,” so the document didn’t require Senate ratification. “But neither was it a typical executive-branch negotiation designed to implement current policy and law,” writes Webb, a Marine Corps veteran, novelist, and onetime Republican who served as secretary of the Navy under Ronald Reagan. After the investment of hundreds of billions of dollars and the loss of thousands of American lives, the “framework” determined the course of substantial U.S. assistance to the fledgling regime in Baghdad for years to come.

Writing in The National Interest, Webb, who served one term in the Senate (2007–13), says Bush should have consulted Congress about something so consequential. Instead, the administration kept the agreement under wraps until the eleventh hour. Just before it was signed, Webb requested access to the document. Other lawmakers weren’t so diligent: “It appears that I was the only member of the Senate who at least at that point had actually read it.” The Iraqi parliament, meanwhile, voted on the pact two times.

In May 2012, President Obama pulled a similar stunt. After more than a year of negotiations with Afghanistan, he skirted congressional oversight by signing “a legally binding executive agreement,” as the White House termed it. Obama labeled Afghanistan a “Major Non-NATO Ally” and pledged long-term economic and military aid to Hamid Karzai’s regime in Kabul—all without consulting Congress.

It wasn’t Obama’s first executive end-around. In 2011, he hastily ordered the U.S. military into action to protect Libyan civilians from forces loyal to Muammar al-Qaddafi. The commander in chief of the armed forces can authorize such strikes without congressional approval if time is short and the threat is grave. But in this case, there was no direct threat to the United States. Even when the intervention dragged on for months—and the financial costs mounted—the president refused to loop in Capitol Hill. Congressional leaders didn’t even schedule a debate on the matter. “President Obama has arguably established the authority of the president to intervene militarily virtually anywhere without consent or the approval of Congress,” Webb marvels, “at his own discretion and for as long as he wishes.” The precedent “has the potential to haunt us for decades.”

The worst of it, according to Webb, is that Congress doesn’t howl in protest. In the post-9/11 world, lawmakers blanch at the thought of questioning the president’s national security prerogatives. Few have sought formal debates over these issues; in the Senate, leaders barred all Libya-related legislation.

Negligence and dereliction plague Capitol Hill, Webb argues. “As in so many other areas where powers disappear through erosion rather than revolution, many members of Congress do not appreciate the power that they actually hold.”

What’s more, in today’s world of drones and special operations forces, the president can order actions that fly under the radar of the American public. Congressional oversight is needed now more than ever.

Webb says his former colleagues should dust off their copies of the Constitution and remember their duties. “One hopes Congress—both Republicans and Democrats—can regain the wisdom to reassert the authority that was so wisely given to it so many years ago.”

THE SOURCE: “Congressional Abdication” by Jim Webb, in The National Interest, March/April 2013.

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