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Checks and Balances Anyone? | The Nation

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John Nichols

John Nichols

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Checks and Balances Anyone?

When it was proposed during the Constitutional Convention of 1787 that the sole power "to make war" be vested in the Congress, the measure carried overwhelmingly. Only one delegate favored granting the authority to the executive branch, South Carolina's Pierce Butler and his proposal was greeted with horror by his fellow delegates. Elbridge Gerry of Massachusetts said he "never expected to hear in a republic a motion to empower the Executive alone to declare war." George Mason of Virginia explained that he was against empowering a president to declare war because an individual could "not be trusted with it." Charles Pinckney of South Carolina closed the debate by declaring, "In a democratic republic, it is essential that the decision to go to war be made by the most broadly representative body: the legislative."

Fully conscious of the threat that an executive bent on illegitimate warmaking could pose to the republic, the founders took great care to structure a governing system based on checks and balances. The Congress was charged with the task of declaring wars; the president, as commander-in-chief, was given the power to pursue military action.

Each of those duties came with profound responsibilities. The Congress was required to analyze all the arguments for sending American troops into combat, review the costs and consider the long-term diplomatic, political and moral consequences of so serious a decision. The president's role, as head of the executive branch, was to serve as a guide and a resource -- providing insights on the best approach and assuring that the legislative branch had the information in needed to determine whether war is necessary.

Last fall and winter, as the Bush administration agitated for war with Iraq, the too-powerful leadership of the Congress failed to live up to its most basic responsibility: the checking of a presidential rush to war. Despite demands from millions of citizens, Republican and Democratic leaders of the House and Senate allowed their chambers to serve as little more than rubber stamps for a president who desperately needed to be checked and balanced. And they ultimately pushed through a vague resolution that was presumed to require the White House to work with the United Nations to address questions of whether Saddam Hussein's Iraq posed a threat to the rest of the world.

Millions of Americans demanded that Congress take seriously its responsibility to balance the executive, and some members of the House and Senate listened. U.S. Senator Robert Byrd, D-West Virginia, U,S, Senator Russ Feingold, D-Wisconsin, Congressional Progressive Caucus co-chairs Dennis Kucinich, D-Ohio, and Barbara Lee, D-Cal., and representatives such as Sherrod Brown, D-Ohio, Jan Schakowsky, D-Illinois, and John Conyers, the Michigan Democrat who is the ranking Democrat on the House Judiciary Committee, made valiant attempts to get the Congress to do its duty. In particular, Byrd, Kucinich and Conyers continued to challenge the administration. But, while they asked the right questions, they were isolated in a Congress where leaders refused to give official sanction to a necessary dialogue about the Bush administrations arguments and "evidence" for warmaking.

Throughout the months leading up to the start of the war, leaders of the House and Senate accepted the White House line with little or no questioning. They effectively steered the Congress out of commission.

Now, as Americans learn that the White House line was crooked, the question is whether those Congressional leaders will assert the Constitutional authority of their chambers or remain the pawns of the administration. New revelations by security advisors regarding what appears to have been a pattern of deliberate deception by the administration -- right up to and including the insertion into the president's State of the Union address of discredited claims about Iraq seeking to buy uranium in Africa -- have confirmed the concerns of the millions of citizens who said before the war started that George W. Bush had failed to make a credible case for the preemptive invasion of another country.

In the face of these revelations, there can be no doubt regarding the intent of the founders, or their charge to the current Congress. The Congress is required by the Constitution to police the president. The revelations regarding the fabrications, fantasies and falsehoods on which the arguments for war were based must be investigated. The investigations must be immediate, they must be thorough, they must be conducted in the open, they must follow the obvious lines of questioning that have been raised, and they must determine who in the administration was responsible for any and all deceits. And every indication from the founders is that the leaders of the Congress should have no qualms about advancing the investigation as the occupation of Iraq continues. Indeed, as John Marshall explained, "the whole powers of war being, by the Constitution of the United States vested in Congress, the acts of that body alone can be resorted to as our guides."

At the heart of the investigation must be an understanding that the Constitution charges the Congress with no greater duty than that of checking and balancing the executive branch in a time of war. The Congress failed in that duty during much of the past year. Now, it must reassert and redeem itself. It should do so with a consciousness of the warning the primary author of the Constitution itself, James Madison, gave America at its beginning:

"Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manner and of morals, engendered in both. No nation can preserve its freedom in the midst of continual warfare.

"War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasuries are to be unlocked; and it is the executive hand which is to dispense them. In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venal love of fame, are all in conspiracy against the desire and duty of peace."

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