Balkans Bungling; D. Bandow

Potomac Principles Balkans Bungling: Why Only Congress Can Declare War by Doug Bandow W hen the U.S. attacked Yugoslavia earli er this year, it inaugurated war against another sovereign state that had not attacked or threatened America or an American ally. The President, and the President alone, made the decision. The constitutional requirement that only Congress shall declare war is obviously a dead letter. Yet the administra tion's embarrassing bungling in Kosovo illus trates just why the Framers intended that the decision to go to war be vested in the legislature. Presidential war-making has become a con stant. Ronald Reagan invaded Grenada; George Bush attacked Panama. Neither both ered to consult Congress. Bush planned to attack Iraq irrespective of Congress, explain ing that "I don't think I need it" when asked if congressional approval was necessary. Why? "Many attorneys," he said, had "so advised me." He apparently didn't bother to read the Constitution himself.

President Clinton ended up only a Carter brokered agreement away from invading Haiti and has promiscuously attacked other nations or ·groups within nations-Afghanistan, Bosnia, Iraq, Somalia, Sudan, Yugoslavia without appropriate legislative authorization. Like his predecessor, Bill Clinton has resisted any attempt to restrict his war powers. In late 1993 the one-time law professor and state Doug Bandow, a nationally syndicated columnist, is a senior fellow at the Cato Institute and the author and editor of several books, including Tripwire: Korea and u.s. Foreign Policy in a Changed World. 33 attorney general claimed that "the Constitu tion leaves the President, for good and suf ficient reasons, the ultimate decisionmak ing authority." He opposed congressional attempts to restrict his plans in both Bosnia and Haiti and more recently pressured Con gress not to vote on his plan to launch air strikes on Yugoslavia and place 4,000 peace keeping soldiers in Kosovo.

Alas, this executive presumption goes back to Richard Nixon, Harry Truman, and, indeed, much further. It was also shared by the various potentates who once ruled Europe. Observed President Abraham Lincoln: "Kings had always been involving and impov erishing their people in wars, pretending gen erally, if not always, that the good of the peo ple was the object." America's founders intended to take a different path. Article 1, Sec. 8 (11) states that "Congress shall have the power ... to declare war." As Lincoln explained: "This, our Convention, understood to be the most oppressive of all Kingly oppressions; and they naturally resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us." Of this there is no doubt. James Madison wrote in 1793 that it is necessary to adhere to the "fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature." Pierce Butler of South Carolina proposed giving the president the power to start war, caus ing Elbridge Gerry of Massachusetts to exclaim that he "never expected to hear in a 34 THE FREEMAN/IDEAS ON LIBERTY • JUNE 1999 republic a motion to empower the executive to declare war." The convention rejected Butler's motion.

Why? The founders wanted to make it more difficult to go to war. Thomas Jefferson wrote that "We have already given . . . one effectual check to the dog of war by transferring the power of letting him loose." The nationalist Alexander Hamilton reassured early Ameri cans who feared that the proposed Constitu tion .granted the president powers too similar to those of Britain's king. The president's authority, he said, was "in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the land and naval forces . . . while that of the Bri~ish King extends to the declaring of war and to the raising and regulating of fleets and armies; all of which by the Constitution would appertain of the legislature." Virginia's George Mason, who favored "clogging rather than facilitating war," was blunt: the president "is not safely to be entrusted with" the power to make war. This view has certainly been validated by history.

President Franklin Delano Roosevelt schemed to get America into war; both George Bush and Bill Clinton conducted dubious propa ganda campaigns to build public support for their executive war-making. The pervasive dishonesty of and abuses perpetrated by exec utive leaders in the United States and else where demonstrate the importance of circum scribing their power. The requirement of a declaration of war obviously offers no guarantee against ensnar ing the nation in costly and unnecessary over seas conflicts. But the need to win legislative assent still limits presidential discretion, while a debate puts the issue before voters and allows them to hold Congress responsible for government policy. In a complex world filled with a. variety of potential threats, there will always be unclear instances, perhaps retaliation against a terror ist group, where a president might claim col orable constitutional authority for unilateral military action. But the number of hard cases are few. There is no doubt that congressional approval is required to launch an aggressive war against Yugoslavia.

Presidents have been able to ignore the Constitution's clear strictures only because successive Congresses have allowed them to do so. The partisan flip-flops have been daz zling: Republicans raged against Truman's actions but defended Nixon; Democrats demanded that Bush go to Congress but encouraged executive war-making by Clinton. Many legislators care less about dead soldiers than dead careers. Avoiding a vote allows them to avoid taking any responsibility on the most serious of issues, war and peace. It is time for all sides to re-examine their commitment to the Constitution. Presidents take an oath to support the Constitution; that means going to Congress for a declaration of war. Legislators, who make the same pledge, should want to protect not only the Constitu tion, but also their institutional authority. Yet the issue is far more fundamental than just a political struggle between the executive and legislative. The nation's security is at stake.

As a result of presidents' routinely plung ing America into overseas conflicts that are at best tangentially related to U.S. security, hun dreds of thousands of soldiers have been killed, hundreds of billions of dollars squan dered, numerous civil liberties lost, and a host of government bureaucracies spawned. The issue of war and peace is simply too important to leave to the president. Perhaps this never has been more obvious than after watching this administration turn a minor tragedy into a monumental crisis in Europe's tar baby, the Balkans. The President and his advisers were surprised when the Albanian Kosovars first rejected the Ram bouillet diktat, surprised when bombs did not compel Belgrade's acquiescence, surprised when the Serbs struck back at the Kosovo Lib eration Army and the Albanian Kosovars, sur prised when refugees overwhelmed neighbor ing countries, surprised at the capture of U.S.

soldiers stationed in Macedonia, and surprised that the conflict continued, week after week. A full and unfettered congressional debate could have prevented the looming debacle. D • Economics Market-Share Sophisms by Christopher Mayer T here are few more widely held fallacies than equating market share to power over consumers and competitors. That great com panies maintain dominant positions in their markets is a red flag for regulators and anti capitalist moralists, rather than a sign of hard won success and ingenuity worthy of admira tion and study. Weaker competitors use the market share of others as an excuse for their own failures when they turn to the govern ment for assistance. Witness the pursuit of such great companies as Microsoft and Intel. Market share is a reward for serving con sumers better than competitors do. It does not confer special privileges or powers to a pro ducer, which is subject to the same economic laws and will of the consumer as any other company. Market share can be easily lost by poor decisions and inefficiency.