Rand Paul: Does The Constitution Allow The President Latitude To Negotiate Peace?

Isn’t it ironic that the neoconservative advocates of limitless, unchecked presidential war powers are at the same time the most eager voices for circumscribing the president’s power to end a war?

Congress must not obstruct the “unitary” presidential war powers in any way, the neocons say. At the same time, they loudly proclaim that “unitary war-making” power includes initiation or declaration of war and, of course, the commander-in-chief power to dictate the terms of how the war is fought, but by golly, the president should not presume that he has the power to determine how the war will end.

Seems bizarrely upside down when you think about it.

Historically, at least in the first 150 years or so, presidents adhered to the Constitution as the framers had intended. Madison’s admonition that the Executive is the branch most prone to war and therefore the Constitution, with studied care, vested the initiation or declaration of war with the legislature.

Even when self-defense warranted Jefferson’s protection of our ships from the Barbary Pirates, he took pains to ultimately seek Congress’ permission to launch full-scale offensive operations.

Jefferson understood that Congress determines not only what constitutes a threat to national security but also how to address that threat. Rather than place the question of war and peace within the purview of a single person, the Founders expected Congress to deliberate to ensure that war was in the nation’s interest. James Wilson articulated this expectation when he declared at the Pennsylvania ratifying convention, “This system will not hurry us into war … it will not be in the power of a single man, or a single body of men to involve us in such distress, for the important power of declaring war is vested in the legislature at large.”

The neocons, who want nothing more than to hurry us into war, would retort by pointing to the amorphous powers supposedly inherent in the president’s role as commander-in-chief. But those neocons ignore the legislative checks on executive power. In addition to the power of the purse, Congress is given the power to raise and support armies; maintain a navy; regulate the land and naval forces; and organize, arm, and discipline the militia. The commander-in-chief has nothing to command except what Congress provides.

Even after war has begun, Congress has the power to determine the scope of the conflict to meet the threat. During the Quasi-War with France, one of our earliest conflicts after independence, Congress authorized the seizure of certain ships by the U.S. Navy, but President John Adams unilaterally sought to expand those congressional parameters. In the resultant 1804 case of Little v. Barreme, a unanimous Supreme Court found that the president must adhere to congressionally passed laws, even when those laws relate to the direction of battle. More recently, during the Vietnam War, Congress passed an appropriations bill that cut off funds for military operations in Cambodia, effectively denying President Nixon’s expansion of the conflict.

Despite these examples, recent history is replete with presidents ignoring the Constitution, ignoring Congress, and unilaterally committing our troops to war. The Iran War is the most current example.

There are few Republicans willing to challenge the “unitary” all-powerful theory of presidential power when the GOP controls the White House. Our ranks seem to have been greater when President Obama was bombing Libya or Syria, or Biden was bombing various African regimes. Sadly, an originalist view of the Constitution regarding presidential war powers seems to depend upon partisanship.

Curiously, though, many Republicans have found a degree of courage and their voice to publicly criticize President Trump’s initial peace plan for Iran. Time will tell if the administration is successful.

I’m more interested in whether the Constitution allows the president latitude to negotiate peace. Certainly, there is no such language in the Constitution to limit a president’s prerogatives regarding peace.

Imagine, for example, how peace occurs. One universal aspect of peace is the absence of fighting. Since no one, myself included, argues against the presidential direction of our soldiers in a time of war, a president could simply order the troops to discontinue fighting when he or she determines that the war is over.

The neoconservative critics of President Trump would likely respond that they don’t want to circumscribe his ability to stop fighting; just his ability to put that into an agreement.

Maybe… but history shows that peace treaties often come long after a war has ended. World War I ended in 1918 without an immediate peace treaty ratified by the Senate. In fact, the Treaty of Versailles was rejected by the Senate. It was the Treaty of Berlin that officially restored peace between the United States and Germany in 1921, three years after the fighting ended.

World War II ended with the surrender of the Axis powers in 1945. But official peace treaties were not ratified with several European Axis countries until 1947, with Japan until 1952, and with Germany until 1990. The sooner we can come to a formal peace agreement with Iran, the safer America will be.

President Trump now seeks a peace settlement that would end immediate hostilities and Iran’s ability to acquire nuclear weapons. Congress can play a supportive and constructive role in this process. Republicans and Democrats should support President Trump’s efforts to bring peace with Iran.

If the neoconservatives were consistent, they might acknowledge that limitless, unchecked presidential power to initiate war followed by circumscribed presidential power to end war might just lead to the state of perpetual war President Trump campaigned against, again and again.

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U.S. Senator Rand Paul, M.D., (R-KY) serves as the chair of the U.S. Senate Committee on Homeland Security and Governmental Affairs. He has represented Kentucky in the U.S. Senate since 2011. He and his wife, Kelley, live in Bowling Green and are the parents of three sons.