Rand Paul

Senate Floor Speech on War Powers and the Unitary Executive Theory

delivered 10 December 2020

Audio AR-XE mp3 of Address

Senator Paul: Madam President:

Presiding Officer Hyde-Smith: The Senator from Kentucky.

Senator Paul: The best part of any debate is when you see people twisting themselves in knots, going into -- going against their own alleged principles to get their desired results.

Today, the subject is war powers. The Hawks and the Neocons somehow want you to believe, in contrast to all logic, that the president of the United States has the unitary power to go to war anytime he wants, anywhere, free from interfere[nce] from Congress. That’s their stated position anytime war comes up.

Yet, today in the NDAA [National Defense Authorization Act] they now want a president that cannot leave a war without their permission. How absurd is that? They believe the president has the power to go to war anywhere, anytime, but when a president tries to remove troops they say, "Oh, no, no -- what we really want are 535 Generals in Congress to tell him he can't leave a war."

How absurd is that? It's exactly the opposite of what both the Constitution and logic would dictate.

When Congress tried to impose time limits on troop engagements during the Iraq War, the neocons squawked that it would be a mistake to have 535 generals. They said the execution of the war was the prerogative of the president -- until a president decided he wanted to leave a war.

During the Bush Administration, Dick Cheney and a team of legal apologists argued for something called the "Unitary Executive Theory." Professor Edelson at American University describes this theory of an all-powerful commander-in-chief concept. This Unitary Executive Theory claimed to justify effectively unchecked presidential power over the use of military force, the detention and interrogation of prisoners, extraordinary rendition, and intelligence gathering.

According to the Unitary Executive Theory, since the Constitution assigns the president all of the "executive power," he can set aside laws that attempt to limit this power over national security. This is an enormous power. Critics say that it effectively puts the president above the law.

But this is the belief of the neocons: They say, "The president is all-powerful," until, they say, "Well, unless the president's trying to stop a war. Then we must shackle the president with rules and regulations, and make sure that he cannot leave a war unless Congress says so." That's what the NDAA will do this year.

Now these same people who advocated for virtually unlimited commander in chief powers have put forth limits in this bill to restrain a president from removing troops from a country. Effectively, these neocons put forth a belief that the commander in chief has virtually unlimited power to initiate war but they are just fine with hamstringing and preventing the commander in chief from ending a war.

Hypocrisy, anyone? Without a shred of embarrassment these neocons happily constrain a president from leaving a war theater while they also simultaneously argue for a president that can start war anytime, anywhere across the globe without Congressional authorization.

Our Founding Fathers would be appalled. Primary among our Founders’ concerns was that the power to initiate war not be in the hands of one person. As Madison wrote in the Federalist Papers: The executive is the branch of government most prone to war. Therefore, the Constitution, with studied care, vested the war-making powers in the legislature. To our Founders, initiation of war was the sole prerogative of Congress.^1,2

But a great deal of discretion was given to the president in Article II to execute the war. The neocons forever believed in this discretion. They said the war shouldn't be fought by 535 generals in Congress. We should give the president the freedom and power to execute the war. And largely they're correct -- until they popped their heads up today and say, "unless the president wants to stop a war. Then we take it all back. What we really want is a president who can't execute a war -- or execute the end of war without the permission of Congress."

Likely, our Founders would have agreed with the common complaint that we don’t need 535 generals in Congress. In other words, success in war requires most decisions on executing the war to be in the hands of one person, the president. Even I, who had been opposed to most of the recent overseas activities and wars, even I believe that once Congress initiates it, most of the decisions should be made by the president.  

So, the decision to go to war requires the consensus, the initiation, the beginning of war requires the consensus of 535 members of Congress under the Constitution. It's very clear. They debated it over and over and they said initiation, declaration of war should be done by Congress.

But, the execution of the war would largely be left up to the president. Many, many current and former members of Congress have agreed.

Representative Liz Cheney has argued that "the nature of military and foreign policy demand the 'unity of the singular Executive,' and that the Founders certainly did not intend, nor does history substantiate, the idea that Congress should legislate specific limits on the president’s powers"³ in wartime. Liz Cheney -- who is also, ironically, the author of this amendment to the NDAA. She said we shouldn't limit the president's powers in times of war, and then she authors a limitation on the president removing troops from war.

So which is it? I guess she's only for this "unitary power" -- all-powerful commander in chief when they fight war. But if a president wants to end a war, oh, no, Congress has to stop them at all costs from ending a war.

I think what comes out of this is that the neoconservative philosophy isn't so much about a unitary executive, isn't so much about an all-powerful command in chief. The philosophy of these people is about war, substantiating war and making sure that it becomes and is perpetual war.

Senator [Lindsey] Graham said: The one thing he has been consistent on" is that "there is 1 Commander in Chief, not 535" -- this are [sic] his words:

I believe this Commander in Chief and all future Commanders in Chief are unique in our Constitution and have an indispensable role to play when it comes to protecting the homeland. If we have 535 commanders in chief, then we are going to be less safe.⁴

I guess, except for this bill which actually created 535 generals in Congress to tell the president -- not just this president -- and some of his anger is partisan anger and people don't like President Trump -- but this will bind future presidents. This isn't just about this president. So when Lindsey Graham says we don't want 535 commanders in chief -- if this is his belief he should vote against this bill because this bill creates 535 commanders in chief.      

The late Senator [John] McCain said, "...it would be a very serious situation where we are now 535 commanders in chief...the president of the United States is the only commander in chief."⁵

Senator [James] Inhofe, the Chairman of the Armed Services Committee has said, "We don’t need 535 generals in Congress telling our troops how to win this fight"⁶ -- except for we are going to pass a bill that I assume all of these folks will vote for that actually creates 535 generals in Congress to say to the president, to this one or any president, that he can't leave the theater in Afghanistan without their permission.

It's a tragedy. It's hypocrisy. And it's a terrible bill.

Of course there's also former Vice President Dick Cheney, who was adamant that the War Powers Resolution, which requires the president to simply report to Congress on matters of war, was unconstitutional and "an infringement on the president’s authority as [the] commander in chief."⁷

Senator [Lamar] Alexander has also said, "there [is] a reason why we don’t have 535 commanders in chief or 100 commanding generals each saying: Charge down this street or over that hill."⁸ I tend to agree. Except for it seems to be one-sided. These people seem to believe that we shouldn't have 535 generals in Congress when it's about initiating war. But when it comes to removing troops from the battlefield, when it comes to finally coming home after America's longest war, in Afghanistan, they all say, "Oh, no no. You're wrong. We're not going to let you come home. We're going to restrict and restrain the powers of commander in chief because we don't want to tend of the Afghan war.

It seems as if the only thing you can conclude is they really don't care about their theory about al all powerful commander in chief. They care more about perpetuating the Afghan war. 

Until recently, this chorus of voices sang of nothing but the almighty, endless powers that presidents have as commander in chief. That is, until a president arrived on the scene who wanted to reduce overseas troop levels and end America’s longest war in Afghanistan.

Then, the promoters of a strong commander in chief suddenly jumped ship and began advocating the opposite. The began advocating that 535 members of Congress should indeed become generals and should limit the president’s ability to remove troops from Afghanistan.

Which is it? Are you for this unlimited power of the president to execute war or are you only for it when they're initiating war -- when they are continuing war and against presidential prerogative if the president chooses to end a war.   

Shouldn’t we call out this hypocrisy? Shouldn’t someone stand up and express -- and expose expose this rank demagoguery? Shouldn’t someone cry foul that the advocates of unlimited presidential power want it only to apply when that president advocates for war? But the moment a president advocates to end war or lessen overseas troops, and [their] deployments, he or she must be shackled by 535 generals.

This Defense Authorization bill could more aptly be called, "A Bill to Prevent the President from Ending the Afghan War." We never actually give the real titles to the bill, but that would be an accurate title: "A Bill to Prevent the President from Ending the Afghan War."

As such, any serious advocate for ending the Afghan War should vote against this monstrosity. The neocon advocates for unlimited presidential war powers should own up to their hypocrisy and admit that their love of perpetual war trumps their oft-stated Unitary Executive Theory.

In reality, the neocons are enamored of their theory of unbounded presidential power only when that power is used to foment war. The minute a president decides to end war, the neocons' true stripes are exposed as they beat their chests and proclaim, as 535 generals might, that the president will not be allowed to remove troops without congressional permission.

This bill sets a very dangerous precedent for limiting a president’s power to end war and should be vigorously opposed.

Book/CDs by Michael E. Eidenmuller, Published by McGraw-Hill (2008)

¹ From Helvidius Number 4, [14 September] 1793: "...the fundamental doctrine of the constitution, that the power to declare war including the power of judging of the causes of war is fully and exclusively vested in the legislature: that the executive has no right, in any case to decide the question, whether there is or is not cause for declaring war: that the right of convening and informing Congress, whenever such a question seems to call for a decision, is all the right which the constitution has deemed requisite or proper: and that for such more than for any other contingency, this right was specially given to the executive." [emphasis added; source: https://founders.archives.gov/documents/Madison/01-15-02-0070]

² From Letter to Jefferson, 1798: "The constitution supposes, what the History of all [Governments] demonstrates, that the [Executive] is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the [Legislature]." [emphasis added; source: https://history.house.gov/Institution/Origins-Development/War-Powers/]

³ Verbatim. See: https://slate.com/news-and-politics/2009/01/what-elizabeth-cheney-s-1988-college-thesis-tells-us-about-the-bush-presidency.html]

⁴ Verbatim. See: https://justfacts.votesmart.org/public-statement/770165/executive-session-drone-program]

⁵ Verbatim. See: https://www.politico.com/story/2013/09/john-mccain-syria-plan-096187

⁶ Verbatim. See: https://www.inhofe.senate.gov/newsroom/press-releases/inhofe-again-rejects-democrats-effort-to-micromanage-the-war

⁷ Extended quotation from Politico's report: “'The War Powers Act is still in force out there today, that requires him to grant certain notifications to the Congress and give them the authority to supersede those by vote if they want to when it comes to committing troops,' Cheney said. 'No president has ever signed off on the proposition that the War Powers Act is constitutional. I would argue that it is, in fact, a violation of the Constitution; that it's an infringement on the president's authority as the commander in chief. It's never been resolved, but I think it's a very good example of a way in which Congress has tried to limit the president's authority and, frankly, can’t.'” [emphasis added; source: https://www.politico.com/story/2008/12/cheney-war-powers-act-violates-constitution-016785]

⁸ Extended quotation: "Mr. President, my purpose today is to say I believe it is time for President Bush to take the Iraq Study Group report down off the shelf and use it for something other than a bookend. But first let me say something about the resolution that we are about to consider. There is a reason why we don't have 535 commanders in chief or 100 commanding generals each saying: Charge down this street or over that hill. The Founders of our country made the President the Commander in Chief and gave to Congress the power to declare war and pay for it. That is why I will vote against this resolution and any of the resolutions that seek to micromanage the war. Once a war is authorized, as this one was by a bipartisan vote of 77 to 23 in 2002, it is the President's job to manage the war." [emphasis added; source: https://justfacts.votesmart.org/public-statement/247033/to-revise-united-states-policy-on-iraq-motion-to-proceed/]

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