Congress Can Chain the Dogs of War

Fred Barbash has an excellent column in today's WaPo. He thinks the President's interpretation of the Constitution is a little fruity. Barbash exposes Bush’s fondness for cherry picking from the Constitution to support his exclusive War Powers. He quotes Scalia, yes, Scalia:

"Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."

The Constitution's Article I gives Congress war powers far beyond the power of the purse.

It vests in the House and Senate the authority to "declare war," to "make rules concerning captures on land and water [torture and Habeus Corpus]," to "provide for the common defense [Homeland Security, warrantless wiretapping]," to "raise and support Armies," and to "make rules for the government and regulation of the land and naval forces [deployment and protective gear]." In addition, the Senate advises and consents on important military appointments, which is why Lt. Gen. David Petraeus was on Capitol Hill last week for confirmation as the general in command of U.S. forces in Iraq.

War is a shared responsibility. The records of the 1787 convention at which the Constitution was drafted unquestionably demonstrate that. An early version of Article I, for example, gave Congress the power to "make war."

The delegates changed the wording to "declare war," not to remove Congress from the process but to leave the commander in chief the "power to repel sudden attacks," as James Madison put it.

"The executive should be able to repel and not to commence war," agreed Roger Sherman. In the eyes of some delegates, this limited authority was safe in the hands of a president because "no executive would ever make war but when the nation will support it," said delegate Pierce Butler.