[Congressional Record Volume 165, Number 106 (Monday, June 24, 2019)]
[Senate]
[Pages S4472-S4473]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         CONSTITUTIONAL POWERS

  Mr. MERKLEY. Mr. President, this Chamber has the responsibility to 
debate tough issues that face our Nation. It has been devoid of such 
tough debates now for a very long time, essentially failing to perform 
its responsibilities to the American people under the vision of our 
Constitution. I am more troubled at this moment about this failure than 
any previous moment because, at this moment, the drums of war are 
beating, and this Chamber stays silent.
  At this moment, we have a bill before us to address security issues. 
Yet we are being denied the chance to debate the most important 
security issue of all--whether or not the United States goes to war.
  The question before us in the amendment put forward by Tom Udall of 
New Mexico and Tim Kaine of Virginia is this: Has there already been an 
authorization by this body for the President to go to war against Iran? 
Their amendment answers this question. It says with great clarity that 
the answer is no. The President does not have authority to go to war. 
The power to make that decision is vested with Congress, and no bending 
and twisting and contorting of any previous authority can be used in 
this situation. That is what their amendment says. It says: Mr. 
President, if you want to go to war, you have to come to Congress to 
get authority--authority voted on after the date of their amendment.
  It is a fundamental question: Are we going to follow the Constitution 
or not? When our Framers were working on the Constitution, many feared 
that a President would become a King, and many feared that Kings take 
countries to war to the benefit of their treasure and their power but 
to the disadvantage of the people. But we are supposed to be a country 
with a different vision--not government by and for a King or by and for 
the powerful, but by and for the people.
  They debated this at great length and decided with clarity and 
authority that Presidents in the United States would not have that 
power. Hamilton wrote about this in his Federalist Paper 69 in 1788:

       The President is to be the commander-in-chief of the army 
     and navy. . . . In this respect his authority would be 
     nominally the same with that of the king of Great Britain, 
     but in substance much inferior to it. It would amount to 
     nothing more than the supreme command and direction of the 
     military and naval forces . . . while that of the British 
     king extends to the DECLARING of war.

  This declares a huge difference between a kingship that can decide on 
war, but here in America, it is the power vested in this body--
Congress.
  At another point Hamilton wrote that the President of the United 
States ``would be an officer elected by the people for FOUR years,'' 
again, describing the difference between a President and a King. 
``[T]he king of Britain is a perpetual and hereditary prince. . . . The 
one would have a right to command the military and naval forces of the 
nation''--the one being America, the other being the King of Britain--
``possesses that of DECLARING war,'' very much emphasizing how 
important this distinction is.
  President Lincoln addressed this when he was in office:

       Allow the President to invade a neighboring nation, 
     whenever he shall deem it necessary to repel an invasion and 
     you allow him to do so whenever he may choose to say he deems 
     it necessary for such purpose--and you allow him to make war 
     at pleasure. . . . If, today, he should choose to say he 
     thinks it necessary to invade Canada to prevent the British 
     from invading us, how could you stop him? You may say to him, 
     ``I see no probability of the British invading us,'' but he 
     will say to you, ``Be silent; I see it, if you don't.''

  Then Lincoln brings to bear that our Constitution doesn't allow this.
  The provision of the Constitution that gives the war-making power to 
Congress was dictated, as I understand it, for the following reason: 
that Kings had always been involving and impoverishing their people in 
wars, pretending generally, if not always, that the good of the people 
was the object. Our Convention understood this to be the most 
oppressive of all kingly oppressions, and it resolved to so frame the 
Constitution of the United States that no man should hold the power of 
bringing this oppression upon us.
  These were powerful words from President Lincoln in his describing 
the Founders' vision to make sure that no one man, including the 
President, holds the power to bring that oppression, the oppression of 
war, upon us.
  James Madison's notes of the debate of the Constitutional Convention 
of 1787 revealed that when Pierce Butler, of South Carolina, urged the 
President be given the power to initiate a war, the delegates 
overwhelmingly rejected his proposal.
  Elbridge Gerry, of Massachusetts, said that he never expected to hear 
in a republic a motion to empower the Executive to declare war.
  George Mason, of Virginia, remarked that he was ``against giving the 
power of war to the Executive'' because the President ``is not safely 
to be trusted with it.''
  Leader after leader said this power must reside in Congress, not in 
the President.
  This list of the Founders' vision goes on and on, all to this 
fundamental point: No one man--certainly not a President--is given the 
power to declare war.
  While we are here on the Defense Authorization Act, shouldn't we 
debate this issue? We have a President who, regardless, claims he has 
complete power to declare war. We have asked members of his Cabinet: Do 
you respect the Constitution? Will you come to Congress and ask for 
authority if you want to wage war against Iran? They have refused to 
answer that question time and again.
  So we demand here on this floor that we hold a debate on Tom Udall 
and Tim Kaine's amendment that states, very clearly, we have not 
authorized war. You cannot take any prior authorization and bend and 
twist and contort it to somehow say Congress has provided you this 
authority.
  I expect, under debate, if we were here listening to each other, this 
would

[[Page S4473]]

have broad, bipartisan support. All of us took an oath to the 
Constitution. It does nothing but restate the fundamental principle 
written into the Constitution.
  The drumbeat of war against Iran has been steady--a continuous 
demeaning of its every move. For sure, it does many things that bother 
us a great deal. Yet it is more than just being concerned about its 
current activities when I speak of the drumbeat of war; I am talking 
about the fact that we exited an agreement that we made with Iran, the 
JCPOA agreement, which had it dismantling all of its nuclear programs 
in exchange for some loosening of economic restrictions. We exited it. 
When we did that--when President Trump pulled us out of it, he did 
exactly what the rightwing said, what the hard-liners in Iran said, 
which was that America was not to be trusted, that America will not 
stand by the agreement. President Trump showed Iran that it was right.
  Then, in this tightening of the economic restrictions by us that has 
ensued, we have made life difficult all across the spectrum of Iranian 
civilians, and we have created more support for the rightwing, for the 
hard-liners, for the Islamic Revolutionary Guard in Iran--the folks who 
are the least interested in negotiating with the United States of 
America, the folks who are most interested in pursuing a nuclear 
program. We have strengthened Iran, within its country, with this 
action.
  Then we deployed the Abraham Lincoln carrier strike group to the 
Persian Gulf. One of our carrier strike forces is immensely powerful. 
It is able to rain down bombs on a vast number of cities in short order 
with there being massive destruction that symbolizes and embodies that 
power.
  It is not just that. We deployed a B-52 squadron to the region, and 
it has an immense, heavy lifting, bombing capability as well.
  It is not just that. The Iranian economy, while it suffered under 
quotas, still had some ability to sell some oil and therefore an 
ability to alleviate some suffering within its country economically. We 
cut off those waivers. Now they are really hard-pressed.

  So we empowered the rightwing. We strengthened the citizens of Iran 
to support the hard-liners, and the hard-liners then did something like 
shoot down an American drone, and we came this close to going to war.
  Our President's--President Trump's--inner Cabinet recommended our 
bombing Iran in retaliation. It was at the last moment that President 
Trump apparently recognized that Iran had shot down an unmanned drone 
and that we were going to conduct a bombing campaign that might kill 
150 people, but that would not have been proportional. His observation 
was right. Yet where were his advisers when talking about 
proportionality--his advisers who had been beating this drumbeat of 
war, who had looked for a trigger, an opportunity to unleash the forces 
that had been pre-positioned in the gulf by the United States of 
America? Shouldn't we demand the President follow the Constitution?
  We must debate this amendment--the Udall-Kaine amendment--on this 
floor. Let people vote no or yes according to their opinions, but let 
us listen to each other. Let us argue about one of the most important 
issues a nation can ever argue about--the power to go to war.
  I hope my colleagues here in the Senate will read the commentary by 
the Founders and by those who came later. I was struck that Jefferson, 
who was very involved in the structuring of the Constitution, talked 
about putting a leash on the dogs of war by transferring the power from 
the executive to the legislative. Yet he didn't just talk the talk; he 
walked the walk. He wrote a message to Congress in 1805: ``Considering 
that Congress alone is constitutionally invested with the power of 
changing our condition from peace to war, I have thought it my duty to 
await their authority for using force.''
  Jefferson talked the talk, and he walked the walk. Are we going to 
walk the walk? Are we going to stand by and not even debate the issue?
  Let us have the Senate be the Senate and put amendments before this 
body on issues that are important to this Nation. We are on a bill 
about the security of the Nation. There is no better time in the future 
than now.
  Are we to come together after war has been unleashed and then hold a 
debate on whether it was authorized? Can we not send clarity now or at 
least debate as to whether to send clarity now that, indeed, it is not 
authorized and that the President must come to Congress, as 
envisioned--as laid out in article I, section 8 of the Constitution? 
Shouldn't we have that debate now, not after a conflict has started? 
The answer is, yes, we should have the debate now.

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