James Madison wrote in Federalist 51, “ambition must be made to counteract ambition.” The executive and legislature were designed to battle each other for power, but what does this look like in practice? The federal government is currently shut down as President Trump and Democrats in Congress have been unable to agree on a budget to pass. Specifically, the two sides have so far refused to compromise on the issue of constructing a wall along the southern border. Democrats do not wish to give Trump the amount of funding he has requested to do so, leading him to threaten to declare a national emergency. If the legislature refuses to fund the wall, Trump has asserted that he has the power as executive to direct the military to build it. Struggles between executive and legislative authorities in governments are nothing new. In John Locke’s famous essay, Second Treatise of Government, Locke argued that the executive power in government should hold the prerogative power, or the ability to make decisions in times of emergency when no laws exist to address a situation adequately. In other words, the executive must have the ability to act swiftly in a way that a deliberative body is unable to act. While Locke believed that the people as a whole would ensure that this prerogative power was not abused, our Constitution gives that role to the legislative branch. The Founders applied Locke’s ideas on prerogative power to foreign policy. While Congress is given the power to declare war and to fund operations, the executive is delegated authority in conducting the war as commander-in-chief. The Founders believed war to be a dangerous event during which time the United States would need one authority to quickly make decisions to protect the nation. In the decades following World War II, this balance was put to the test. Many legislators became increasingly concerned that the executive could send troops into foreign conflicts in the name of national security without a Congressional declaration of war. The legislature witnessed the executive deploy troops in the Korean War and the Vietnam War without a vote in Congress. After the latter of these conflicts, the legislature passed the War Powers Act in 1973 in an attempt to curb potential executive overreach. Among other specifics, the law requires the president to consult with Congress whenever he sends troops into hostile situations. If the legislature does not approve of this conflict after 60 days, the president must bring U.S. soldiers home. President Nixon vetoed the War Powers Act when it was initially passed, but Congress overrode him with a 2/3 majority. Subsequent presidents have nearly unanimously declared the War Powers Act to be unconstitutional, claiming it impedes their ability to carry out their duties as commander-in-chief. This lesson will ask students to examine the War Powers Act as an example of our constitutional checks and balances at work. Through this example, students will come to analyze how this tension between branches leads to the preservation of liberty. Objectives:
- Students will study the U.S. Constitution and understand how the document delegates war powers
- Students will learn why Congress passed the War Powers Resolution in 1973
- Students will analyze how checks and balances have played out between branches and use this understanding to assess the current debate between Congress and the president
- Handout A: U.S. Constitution, Article 1, Section 8, Clauses 11-12:
- Handout B: U.S. Constitution, Article 2, Section 2, Clause 1:
- Handout C: Locke’s Second Treatise of Government (Chapter XIV Section 159-160):
- Handout D: War Powers Resolution of 1973 summary:
Warm-up Activity (20 minutes) Directions: Have students read Handouts A and B and answer the following questions:
- What powers does the U.S. Constitution grant to Congress related to war?
- What powers does the U.S. Constitution grant to the executive related to war?
- In what ways do Congress and the executive have the ability to check the other in the field of conducting war?
Activity: 45 minutes Directions: Have students read Handout C and Handout D. Hold a class discussion in which students share their thoughts on the following questions:
- Why does Locke believe that the executive ought to be the one to possess the power of prerogative in government?
- Why did U.S. legislators after WWII fear the executive having sole prerogative on carrying out war?
- How does the War Powers Resolution assert congressional power on the issue of making war?
- Were the legislators who passed the War Powers Resolution justified in doing so? Or is it an unconstitutional limitation on the executive’s power as commander-in-chief? Explain.
Follow-up Activity The Bill of Rights Institute has a platform where students can engage with each other and voice their opinions on current events. This week’s question is: Should the President of the United States have any unchecked powers? Students with the best answers will win an Amazon gift card, a BRI t-shirt, and be entered for the chance to win a $1,000 scholarship! You can access the platform here: http://www.thinkthevote.com/