Andy Craig for Congress: Constitutional War Powers Act would make starting unauthorized wars a federal felony


Image via Andy Craig for Congress on Facebook.

From Andy Craig, Libertarian candidate for U.S. House (WI-4, Milwaukee):

In 1973, over the veto of Richard Nixon, Congress passed the War Powers Resolution into law. After the unauthorized war in Korea, and the fight over ending the war in Vietnam, Congress sought to re-assert its constitutional power to declare war. The War Powers Resolution set a timeframe within which the President must come to Congress to ask for authorization, and forbade hostilities without authorization except in immediate response to an attack on the United States.

The War Powers Resolution was well-intentioned, but suffers from its own constitutional infirmities, and more importantly it is utterly toothless. No President has accepted it as valid, and Presidents have felt free to violate it with impunity. In Serbia in 1999, in Libya in 2011, and with the ongoing intervention in the Iraqi and Syrian civil wars, Presidents have trampled even the overly generous terms of the War Powers Resolution. These wars were waged by the President even in the face of affirmative disapproval from Congress. The never-ending perpetual authorizations for the 2003 Iraq War and the post-9/11 War on Terror have shown that even when it is used, the system set up by the War Powers Resolution is deeply flawed and insufficient.

There is an answer to this problem, and it comes from an unlikely source: 19th Century budget shenanigans. In the late 1800s, government departments were often willfully over-running their budgets as authorized by law, in particular by obligating the government to contracts that had not been funded by Congress. The practice was even sometimes coordinated and approved by the President. This was seen as a serious threat to Congress’s constitutional power of the purse, and in response the Antideficiency Act made such behavior by government employees not just illegal, but an indictable crime.

That law still stands today, and it is why we certain government functions have to temporarily cease when Congress fails to pass a budget authorization for them. As inconvenient as that may seem when it happens, it stands as the bulwark of a fundamental principle codified in the Constitution and dating back to the Magna Carta. Only Congress can authorize the spending of money out of the treasury, just like only Congress can constitutionally authorize the President to wage war.

Congress can, and should, take the same approach to defend its constitutional war powers. It should be made a federal felony for the President to order the Armed Forces to engage in hostilities absent authorization, with a narrow exception only for the immediate response to an actual attack on the United States. This would also create an enforceable obligation for the Secretary of Defense and senior officers to refuse such illegal orders.

The result would make it a lot less likely, if not impossible, for any President to engage the United States in a war without the constitutionally-required consent of the people’s representatives. It would make it much easier to stop and impeach any President who still did try to usurp Congressional war powers. It would restore the checks and balances set up by the Constitution, and it would help keep the United States out of endless petty wars and half-hearted poorly-executed interventions.

If elected, I will introduce a Constitutional War Powers Act to do exactly that.

– Andy Craig

6 thoughts on “Andy Craig for Congress: Constitutional War Powers Act would make starting unauthorized wars a federal felony

  1. Thane "Goldie" Eichenauer

    I am all for any action that will induce government to obey its own rules. Unfortunately this suggestion seems to be rather in line with laws and regulation of the “there ought to be a law” persuasion. Right now the US Congress has the ability to remove a president that fails to conform to his oath of office. Since Bush was elected no person or persons elected to the US Congress have taken effective steps to have the President impeached. All that being said if you passed such a bill with a fixed, self-repealing term it could hardly be worse than the current status quo.

  2. Andy Craig

    Richard Nixon committed all sorts of constitutional violations, including war powers violations. What brought him down in a de facto impeachment, was conspiring to cover up a “third-rate burglary” – because that was the blatant violation of regular statutory criminal law that he undeniably committed. Government officials unfortunately violate the Constitution itself all the time, particularly in ways that aren’t open to direct judicial enforcement as political questions, as is the case here. But they will agonize with their lawyers at great length to avoid violating a regular criminal statute (sometimes unsuccessfully, but they still try to at least avoid the appearance and come up with a plausible defense).

    Not only are the legal consequences more real and personal, so too are the political consequences. We don’t bat an eye at the idea that bribery, or embezzling from the public treasury, or other official corruption can carry criminal penalties. Why shouldn’t violating one of the fundamental provisions of the Constitution? Especially to the effect of killing people and putting troops in harm’s way and opening the U.S. to counter-attack? Right now the President can plausibly argue he isn’t violating any statutory law when he wages unauthorized war, because the War Powers Resolution has no penalties or enforcement mechanism. Congress should take away that defense, and fix the other flaws with the W.P.R. as well.

    Having a sounder replacement for the War Powers Resolution, with criminal penalties, isn’t an alternative to impeachment, as ineffective and remote a threat as impeachment is. It is a provision that would make much easier the political case for impeachment, if it is needed. And like the Antideficiency Act, the theoretical threat is likely sufficient. Nobody has ever had to be prosecuted for violating the Antideficiency Act, because money being spent by government agencies in excess of their congressional authorization isn’t something that really happens any more.

    As for the objection that “it’s a law” — yes, a law prohibiting a crime (by the President) which I don’t think any Libertarian would call “victimless.”

  3. Joshua

    I recognize the outlines of Libya, Iraq, and Syria, but what country’s outline is illustrated at the upper right of the ad?

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