Why Rand Paul is wrong about the ISIS war being illegal -- and shouldn't be president

If Senator Paul wants to be a leader in his party, he can begin by getting his arguments and facts straight. He is wrong to say that there are those in the Republican party, such as myself, who believe the president’s power is unlimited. That is as much a caricature as saying that Senator Paul thinks that Congress’s power is unlimited. The important difference is how, not whether, the Constitution limits presidential power.

I think that the Constitution gives Congress the power to limit the president through its funding power. He thinks that it arises from the power to declare war. No one in the Framing mentioned the Declare War Clause as a substantive check on the president’s power as commander-in-chief. The defenders of the Constitution relied instead on the funding power to do the job. (Senator Paul should check his facts — he mistakenly cites James Madison as stating in the Federalist papers that the Declare War Clause has to be a limit on the president because that branch is prone to war. Actually, Madison in the Virginia ratifying convention cites the funding power as the limit on the commander-in-chief power). The funding power is a perfect constitutional check on the president’s commander-in-chief power, because all Congress need do to stop the president is nothing: Only by appropriating funds can a war start and continue.