The Debate that never was
by
Matt Giwer (c) 1996 <2/14>
This is something people have been
looking for since Vietnam and it has never materialized. In the
last few years it was raised regarding the Persian Gulf war,
Somalia, Haiti, and most recently Bosnia. If only Congress has
the power to call out the militia then how can the president use
the military without the consent of Congress?
The reason it will not be
debated is that the country is not likely to easily tolerate the
answer and its implications being aired. And this connects also
into the citizen militia movement and justifies it. The answer
is that the standing army is not the militia.
Pro-militia, pro-2nd
amendment people know that. But the part that will not be
debated is the other side of that coin found in Article 2,
Section 2 of the United States Constitution.
Sect. 2. The 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 States;
Note, "and of the militia" in
that power. We know Congress has the power to call out the
militia and raise armies. But where does the president get the
power to use the army and the navy under his own authority? From
the constitutional authority of being the Commander in Chief.
There was a legitimate
fear of standing armies going back to the days of Cromwell when
our country was formed. It is also a very rational
acknowledgment of the changing times that standing armies in some
form are a necessity. But in the process of that change we
provided no additional safeguard against the president using the
entire United States military as his personal army.
And that is the point
that will never be explored in any detail. If it were there
would clearly be a public discussion of this personal army we
have given the president and whether or not it is a good idea.
The discussion would also have to address that the only control
the entire United States government has over the president
ordering an invasion of England just for the fun of it is that
the money will eventually run out.
As Commander in Chief he
can allocate every penny of any defense appropriation to the
invasion as he is the Commander in Chief. And that is without
looking into all of those "certain to exist" powers that were
granted over two centuries in times of war an never repealed.
One obvious power is to inter people of foreign descent such as
Japanese.
The heat from such a
frank discussion is not something that our government could stand
lightly. There is still a Red Button. Any president can press it
at any time for any reason or for no reason.
And any president can
send any part of the US military any place in the world at any
time and for any reason or for no reason. And that is solely
because we have a standing army rather than a militia. If what
we had were only a militia or if we had better safeguards then
Congress would need be the initiator of any military action. But
as long as we have a standing army and the President is the
Commander in Chief then there is no means of Congressional
control over its use.
Now in the old days
presidents were limited to taking over banana republics as the
whim suited them. That is because the Marines were used and the
Marines are a part of the Navy. The US Constitution places no
limits upon the establishment of a Navy. It is not even subject
to the two year rule on appropriations.
But we have given the
President a standing army. Consider the invasion of Britain as
in the "invasion" of Bosnia. This year the president signed a
bill accepting $265 billion dollars that will last for two years.
The president can use, has the power to use all of that, every
penny without regard to anything else to pay the costs of that
invasion.
And I would be amazed to
discover the president does not have some loosely worded law
empowering him to borrow additional monies in pursuit of any
military effort. The loose wording would simply mean that some
law, even during the civil war or the war of 1812, did not
mention a "declared" war. Thus an undeclared war could continue
until the president is impeached or assassinated. And in any
event it could continue until the successor declared an end to
the war and sued for peace on "ignominious" terms, total blame
and total reparations else the war would continue.
This is not a
hypothetical scenario. This is the power we have given the
president over the years and a direct consequence of having a
standing army without controls over the power of using that
standing army. And this is why you will never see an open debate
over the real power of the president to kick ass around the
world.
And there are other
consequences to this power the president has. The president is
legally barred from permitting the military from being used to
enforce civil law save in a small but expanding number of
situations. Although one may feel safe from those limitations
there are no prohibitions against an order from the Commander in
Chief to occupy Iowa, period.
Of course, a president
will never do that. But if the example were Oklahoma the day
after the bombing would the example not seem less ridiculous?
There is no way in law or in the constitution to stop that other
than impeachment and impeaching all successors until one is found
who will stop it.
Nothing exists to save us
from that.
More clearly, there is
nothing short of a Supreme Court decision saying that an order
for the military to seize members of Congress is unconstitutional
to even slow down such and order. And then if the Supreme Court
is seized, who is to object? And if not seized, the president is
the enforcement arm of the Supreme Court.
But there is a solution.
The present constitution fails in that it presumes that a
standing army should not exist and would only exist in time of
war. Circumstances have changed. The amendment required is
rather minor. It is simply that Congress shall have the power to
commit the army (and Air Force)to action. The president can
continue to have the power over the Marines. An "emergency" will
be limited to nuclear attack as a variant upon the original
intention of "invasion." And that will be it.
To rephrase the original,
"the president shall be Commander in Chief of the military when
committed to service by the Congress save in instances of an
attack in progress." Implicit in this will be the intention to
prevent the military from being the personal army of the
president as it is now. The source for the implication will be
the debate as was the source of the debate over the adoption of
the constitution the power of the Supreme Court to nullify laws.
There is no need to disagree over the actual phrasing save to
improve the expression of the intention.
That will express the
intent and laws can then follow limiting the power of the
president to start wars, to occupy states and all of the general
mayhem the present constitution permits in light of the present
constitution permits in light of the need for standing armies.
With no change, we will continue with the present condition of
the army being the personal army of the president. This must
change.