[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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