Why Congress’ role in making war is now irrelevant

REUTERS/Kevin Lamarque
In President Obama's view, congressional authorization of strikes in Syria is a nice-to-have but not a need-to-have.

Yale Law Professor (and major constitutional scholar) Bruce Ackerman took to the New York Times op-ed page last week to describe as “a devastating setback for our constitutional order” President Obama’s assertion that — although he would welcome a congressional vote authorizing his new military strategy against ISIS — he does not need such a vote to proceed with the bombing.

I feel Prof. Ackerman’s pain. I wish that there was something that could reasonably be called “our constitutional order” on the issue of war powers. But I fear not. While Ackerman sees Obama’s latest plan for an undeclared war as a major blow, I believe the constitutional order regarding war powers has long since been effectively eviscerated.  

The U.S. Constitution says relatively little on the subject, but it does rather famously (Article I, Section 8) assign to Congress “the power to…declare war.” It also empowers the president (Article II, Section 2) to act as “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

You might note, if you were feeling feisty, that the Constitution did not appoint the president as commander in chief of the Air Force, even though, in the current matter, the main work of degrading ISIS, at least in the early stages, will be conducted by air power.

Of course, the Framers of the Constitution had never heard of an Air Force, nor a bomber, and it would be silly to seek guidance from them on the use of air power. But it may be almost equally fruitless to seek their guidance on the general matter of a global superpower and its leader’s desire to degrade and ultimately destroy a non-state actor that, for various reasons, we cannot agree on the name of (ISIS or ISIL?).

Wisdom of the Framers

For the most part, the wisdom of the Framers, contained in the two scraps mentioned above, has been translated thus: War is a big deal. It would be dangerous to allow one man, even the president, to get the country into a war just on his say-so. So it should be up to Congress to decide on the fundamental question of when to go to war, which they would express by passing (or not) a declaration of war.

But you can’t run a war by committee, so once the war had begun, the chief executive, operating as commander in chief, would make the day-to-day decisions. The traditional understanding has also included the assumption that the president can use his commander-in-chief powers to deal with emergencies that arise until Congress can get around to debating a declaration of war.

If you are inclined to be quite literal, that understanding goes beyond anything made clear in the constitutional language. Saying that Congress has the power to declare war is not a clear statement that the president is not supposed to do anything without such a declaration. As for the idea that the president has powers to wage a short-term emergency war, there’s not a syllable in the Constitution that says anything like that. The omission of any such language is especially noteworthy because it did assign to the state – yes, to the states! – the power to engage in a war without prior congressional action (Article I, Section 10) if they are “actually invaded, or in such imminent Danger as will not admit of delay.”

Nonetheless, the basic, original plan seems wise, looked at from the perspective of 1787. And it worked fairly well (with plenty of exceptions) for much of U.S. history. Five times Congress declared war (War of 1812, Mexican-American War, Spanish-American War, and the two World Wars). Presidents did mess around on the edges, using military force many times without a declaration, but most of them were relatively minor, until you get past World War II.

The world changed

The Cold War, the emergence of full U.S. superpower status, and the nature of modern warfare made hash (in my view) of the original understanding. The Framers envisioned an America that would have a small standing military and most of its military power would consist of state militias that could be nationalized when needed.

They imagined a USA that would be at peace most of the time (now the United States is basically never really at peace), a world in which Congress could debate peace or war decisions during some long run-up to hostilities while enemy navies needed weeks or months to cross an ocean. They imagined a much less powerful presidency.

They imagined a world in which wars would be between nations and armies. One of the most amazing developments of recent years is that those kinds of wars — between nations and armies, fought across borders, seeking territory — have almost completely vanished from the earth. During the Cold War, at least we had the Soviet Union. The United States is now engaged in a perpetual war against non-state actors.

Obama, who is a lawyer and has taught constitutional law classes, is taking the fairly absurd legal position that his campaign to degrade ISIL is already sanctioned under the resolution Congress passed after the 9/11 attacks authorizing military action against Al Qaida and others who “planned, authorized, committed or aided” in the 9/11 attack.

Obama’s legal position is that this covers ISIS, which the administration declares is an Al Qaida “affiliate.” As Ackerman points out, ISIS broke off from Al Qaida and the two groups now regard each other as rivals and enemies.

As I mentioned above, Obama says he would welcome a congressional vote of support. Ackerman thinks he definitely needs such a vote and points out that President George W. Bush got advance authorization for the use of force against both Afghanistan and Iraq. That’s true, but Bush never said that he lacked the authority to begin those operations without such a vote. And his father, the first President Bush, took the same position heading into his war to reverse the Iraqi conquest of Kuwait.

Obama has the same position. He would welcome congressional approval, but he doesn’t need it. And, judging by the noises out of Washington, he may get such a resolution, which will perhaps help Prof. Ackerman believe that the constitutional order is still standing.

Comments (25)

  1. Submitted by Thomas Swift on 09/15/2014 - 01:04 pm.

    Wait a minute. First you say Obama thinks he has apprival, then he says he doesnt need it. This is the sort of statements we expect to hear from tin pot dictators. Anyone can see Obama is completely lost, treading where his community activist credentials never prepared him. And the lefty media is showing symptoms of Stockholm syndrome.

    • Submitted by Jonathan Ecklund on 09/15/2014 - 04:25 pm.

      SUCH a dictator!

      The guy was elected to the presidency with 53 percent of the popular vote, and was then re-elected 4 years later with 51 percent of the vote… and the 2016 presidential campaign continues apace. Obviously, he’s an undemocratic dictator.

    • Submitted by Neal Rovick on 09/16/2014 - 07:55 am.

      He cannot say anything else.

      What is the reaction by our actual and potential enemies if Obama says that he cannot act in any effective manner unless approved by Congress?

      Especially in a day when Congress is internationally noted for it’s divisions and it’s most famous achievements have been reflexive opposition to the president.

      Talk about giving aid and comfort to our enemies.

      • Submitted by Neal Rovick on 09/16/2014 - 10:24 am.

        In other words, the rest of the world is perfectly aware of the divisions and internal political stalemate within the US.

        To pretend that this is not a situation that other countries or non-state actors are prepared exploit is the height of naivete.

        There is a cost for irrational opposition and reflexive opposition.

        The credible possibility of action MUST be maintained.

  2. Submitted by Paul Brandon on 09/15/2014 - 01:31 pm.

    Good points!

    Particularly about the change in the nature of warfare, and the difficulty of declaring war against non-state actors.
    ISIS/ISIL may have declared itself a state, but as yet lacks most of a state’s physical characteristics, such as a capitol and a governing body. Declaring war against it is about as meaningful as declaring war on ‘Terror’.

    What is clear is that there is a threat to United States interests (oil and oil producing states) if not yet to the United States itself.
    The problem is defining the nature of this threat so that in the long run our actions will be consistent with our laws.
    If we do not do this, we are opening the door to arbitrary military action whenever the executive branch or the military sees fit, without any check or balance.

    • Submitted by Steve Titterud on 09/15/2014 - 02:14 pm.

      “arbitrary military action…”

      “…without any check or balance.”

      I think we’ve virtually got this dynamic going already.

      Remember: the Vietnam War (the Vietnamese call it the American War) was effectively brought to a halt when the Congress refused to provide the funding any longer. The power of the purse-string is the only effective one in the end. It’s hard to see this Congress withholding funds, and the whole budget is such a complicated matter in terms of its support for war, it’s hard to see where exactly to withhold funds.

      The question is not how to prevent it, it’s too late for that. The question is: how to stop it ??

      One factor Eric didn’t mention in particular was nuclear weapons. Because of the speed with which they can be deployed against the U.S., and the necessity of reacting immediately, it seems a good deal of power to act was granted to the President. Over time, this has been stretched to apply to lesser threats, perhaps even imaginary threats.

  3. Submitted by Jeff Kline on 09/15/2014 - 02:26 pm.

    Interesting read…

    This has become quite obvious over the years. The blatant abuse of “executive orders”. No where in the constitution did it authorize the president supreme authority over even congress. Somehow we seem to be embracing things that we got away from when this country was formed….
    I have a rule. If you don’t like it here, pack your crap and get out. Simple. But we have people here that seem hell bent on “change” and that is to turn this back into a monarchy or some form of it.
    In some ways, I hope the talk and banter out there about another American revolution may come to fruition. We need to clean up this land. My dad once quipped that he knows the communists sneaked back in here out in northern California. Would not surprise me. We took on the communists once and won. We might have to do it again. If you are a democrat and a socialist, I hope you understand the game you are in is for keeps. You must also realize the outcome if you loose the game.

    • Submitted by Matt Haas on 09/15/2014 - 08:14 pm.

      umm yeah

      Ok, good luck with that. Just some friendly advice, I’m all for fighting for your side, do it every day, but when you start fantasizing about murdering your fellow citizens, you might want to come up out of that bunker for some air. Geez guys, I think I’ve been ehteralized for far less than this sort of terroristic innuendo, you asleep at the switch?

  4. Submitted by Ray Schoch on 09/15/2014 - 02:29 pm.

    That train has left the station

    …and no amount of yelling or flag-waving, as the case may be, is going to bring it back.

    For a change, I agree with Mr. Swift about something: Mr. Obama’s assertion that he already has the authority necessary has the aura of tin-pot dictator about it. Of course, much the same was true when Bush II applied the same sort of logic and argument, and if Obama seems lost because his community activist credentials didn’t prepare him for this sort of action and responsibility, it seems reasonable to assert that nothing about Mr. Bush’s tenure as the owner of a baseball team or as a “good ol’ boy” Governor prepared him to be a wartime leader, either, especially when he couldn’t be bothered to finish out his Air National Guard service. Like the traitorous Mr. Cheney, I’d guess that Mr. Bush “had other priorities” in his earlier years.

    Consistency or its lack aside, however, I suspect that if Congress really wanted to take back the reins, it could probably do so, and on constitutional grounds. That there’s been no indication of a groundswell of Congressional support for such a position ought to tell us a lot about both the backbone and the constitutional knowledge of most members of Congress. “War,” doesn’t have a definition in my American Heritage Dictionary that conveniently fits the current situation, but plenty of people have been killed, and likely will continue to be killed, whether a “war” by the classical definition is taking place or not.

    Imagination is a powerful – but not all-powerful – thing, and what the framers might have imagined seems likely to have been quite a bit different from our current reality in terms of how the country operates politically and economically, and militarily, as well. Mr. Obama’s legal position that his military campaign against a group of Islamic fanatics is already authorized seems a stretch to begin with, but it’s aided and abetted by the political-military sea-change, a generation ago, from a mostly-volunteer and temporary army to a full-time army of professional soldiers. Even when I was still young enough to be drafted, I thought that latter transformation was a mistake, and it seems even more so in recent years.

    Having professional military forces at one’s disposal makes it less likely that a president will have to seek Congressional approval for military action, since the forces of which he (so far, it’s always a “he”) is C in C are already there and available. This seems to me even more likely when the “enemy” toward which we’re directing our hostility and bullets is, to use the current term, a “non-state actor.” The only real curb to this whole syndrome, it seems to me, is what Steve Titterud has suggested. Funding remains the one significant chink in the armor of the military-industrial complex, which likes nothing better than perpetual warfare, no matter how “war” is defined. I’m inclined to agree with Steve as well that, while the power of the purse remains significant, Congress, as it’s currently constituted and as it currently operates, is unlikely to withhold military funding to any significant degree.

    The noises coming out of Washington may well indicate that Obama will get the resolution of Congressional approval that he’d like to have, but those same noises are also the echo of that constitutional due process train imagined by the framers – the one that departed the station decades ago.

    • Submitted by Paul Brandon on 09/15/2014 - 05:56 pm.

      Congress’s response

      to serious abuse of Presidential power (not simply policy disagreement)
      is impeachment.
      Mr. Kline’s slightly seditious maunderings about counter revolution were settled by G. Washington in the Whiskey Rebellion.
      Congress is far from powerless, even if it may sometimes appear clueless.

  5. Submitted by E Gamauf on 09/15/2014 - 03:18 pm.

    “War on Terra” was Bush’s phrase

    The point is that the terminology may matter.
    And a sense of history.

    Not to mention, an understanding of “Stockholm Syndrome” before speaking.

    Bush didn’t exactly go through the usual procedure for war.

    He’s the one that pushed for the Unitary Executive model – and congress chickened out of a proper role that time.

    Congress is being asked – whether its needed, goes back to the precedents set before, unfortunately.

    And congress, certainly the house has ducked its duties – voting nonsense political theater votes about what is already law (healthcare) that they cannot impact & has been well received.

  6. Submitted by Doug Gray on 09/15/2014 - 09:36 pm.

    your informant’s list…

    …of U.S. military interventions is woefully incomplete. There is a more comprehensive one here: http://academic.evergreen.edu/g/grossmaz/interventions.html. If we define “peace” as “no military forces overseas that are uninvited and/or opposed by a significant portion of the local population,” the U.S. has rarely if ever been “at peace” since 1890, regardless of the preferences or declarations of its Congress.

    Somewhere in the backs of their minds, I’m certain U.S. officials realize how ridiculous they sound complaining about unilateral Russian action in the Ukraine, etc. When “might makes right” goes around, that is exactly what comes around.

    • Submitted by Paul Brandon on 09/16/2014 - 09:17 am.

      Interesting link

      He does have a rather broad definition of ‘military -intervention-, such as
      “MIDEAST 1973 Nuclear threat World-wide alert during Mideast War.”
      He seems to regard any (however small) military activity as an ‘intervention’.

    • Submitted by RB Holbrook on 09/16/2014 - 09:35 am.

      Quite a list

      I don’t know if domestic deployments of troops are really germane to the discussion here.

      • Submitted by Doug Gray on 09/19/2014 - 12:42 pm.

        OK, let’s stipulate that troop use in the U.S. (10 incidents — btw what do you all think about the Posse Comitatus Act) or “mere” threats of force (6 incidents) don’t count. That leaves 130-odd examples of the use of U.S. military force abroad, on every continent except Australia and Antarctica, and no more than 4 years since 1890 when the U.S. may be said to have been “at peace.” So perhaps in addition to hating us because of our freedoms, some people in the world hate us because we can’t seem to keep out of their business.

  7. Submitted by RB Holbrook on 09/16/2014 - 09:42 am.

    Does this Congress really want to be consulted?

    Senator Graham made an interesting (if sobering) point a few days ago. He wondered what would happen if Congress turned down the President’s request, or put so many conditions on it hat the final authorization was ineffective?

    It would be an embarrassment, but for whom? For the President? Perhaps, but more so for Congress. Congressional hatred of the President is so strong that I could see them larding an authorization for force with all manner of irrelevant conditions (“No bombing unless the Affordable Care Act is repealed.”). The few sane members of the Republican Party left in Congress would have to explain why the public’s support for military strikes against ISIL could not translate into Congressional approval.

  8. Submitted by Peder DeFor on 09/16/2014 - 10:05 am.

    But why?

    I just don’t understand why Obama didn’t get together with Congress on this. He met with Congressional leaders and it sounds like there was broad agreement. It would have cost him nothing to put through a general authorization of force. I can’t figure any possible benefit to a stark announcement that was given. The obvious downside is that it cuts the legs out from people that support him, like Eric Black, that truly believe in some simple process steps. This seems like an easy call.

    RB, if the President offered a clean resolution (and I have no reason to think that he wouldn’t) and it was rejected by the GOP, it would be a big black eye to them, right before elections. Pure benefit to Obama.
    So far there have been no statements whatsoever from Republican leaders about trying to leverage other issues into a resolution so I don’t think it’s fair to simply assume that they would do so. Frankly, I’m baffled.

    • Submitted by RB Holbrook on 09/16/2014 - 10:28 am.

      Leverage other issues?

      I would not have thought so, and I share your bafflement as to why this would happen. The issue was raised by Senator Graham.

      Does the Republican leadership have sufficient control over their caucus to make sure a clean resolution is passed? Perhaps it does in the Senate. If the issue were limited to a declaration of war, I don’t think the fear would be justified. The War Powers Resolution requires after-the-fact notification and approval by both houses of Congress. Can the House Republican caucus be relied upon to pass a clean resolution?

    • Submitted by jason myron on 09/16/2014 - 12:54 pm.

      “So far,” being the key distinction.

      If at some point in Obama’s tenure, congress had conducted themselves in a manner conducive to the office rather than acting like crazed, Pentecostal snake handlers, I would share your bewilderment.

    • Submitted by Paul Brandon on 09/16/2014 - 02:54 pm.

      Again, the Pesident can NOT offer

      a resolution — he needs a member of Congress to get it through committee(s) and ultimately to the House and Senate floors, including getting 60% of the vote necessary to get it voted on.
      This in practice means a package that offers conservative Dems and moderate Repubs something that they can use to placate their constituents.

      • Submitted by Peder DeFor on 09/16/2014 - 03:53 pm.

        Huh

        You know Paul, I hadn’t thought of that. I guess it would be impossible to have some member of Congress to offer something up. Have any Presidents done that before in history? If not, maybe Obama could break some more new ground!

      • Submitted by RB Holbrook on 09/16/2014 - 04:46 pm.

        What the President can do

        The War Powers Resolution requires the President to notify Congress that military action has been taken. It is then up to Congress to approve the use of force or declare war. If neither is done, the troops are supposed to be withdrawn.

        The President may request authority to use force by sending a message requesting authority, but it is still up to Congress to act.

  9. Submitted by Peder DeFor on 09/16/2014 - 02:08 pm.

    Now I Get It

    With more thought, I can put forth a theory that at least makes some sense. Ok, we know that Obama is ready to go to war (or at least some war-like thing). He’s already publicly said what he’s going to do. Congressional leaders are on board. There is no vocal block of Republicans in Congress that have said they’d vote ‘no’. So who does that leave? Congressional Democrats.
    If a Dem Senator who is up for election, like our own Al Franken votes to go to war, does he lose some votes? What happens to the pacifists? Do the people with the ‘Keep US out of Iraq’ bumper stickers stay home in November? Can the Dems risk it?
    And even beyond the coming election, what happens if the mission goes badly? No one in congress has to take responsibility for it. If a drone strike wipes out the wrong people, well, no one can blame those good folks at the Capitol building, they didn’t vote for it. No nominee in 2016 (or beyond) will have to answer for a vote here.

    I hate to be cynical but this makes sense, no?

  10. Submitted by E Gamauf on 09/19/2014 - 10:47 am.

    ‘Monty Python’ Congress Takes Another Vacation

    “Run Away! Run Away!”

    How many votes did it take – to expand this latest congressional vacation until a week after the election?

    Without really weighing in too much on the mideast & ISIL situation. . .

    Leaving it in the lap of a president.
    Let’s not forget a crazed segment of the right claimed they to want to sue this president for a fiction they created.

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