War powers proposal does little to restore original constitutional balance

REUTERS/Jonathan Ernst
President Barack Obama, flanked by Vice President Joe Biden and Secretary of State John Kerry, delivering a statement on legislation sent to Congress to authorize the use of military force against the Islamic State on Wednesday.

I’m glad President Obama has decided to seek a congressional vote authorizing the ongoing U.S. military activity against the Islamic State in Iraq and Syria. But it is less than a half-step, more of baby step, toward respecting the now-almost-non-existent constitutional provisions on how the United States is supposed decide whether and when to wage war.

One of the Article I, Section 8 powers granted to Congress by the U.S. Constitution is the “power to declare war.” One of the roles of the president is to “be 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.”

This reflected a now-quaint understanding that the United States would mostly be at peace with the world but would occasionally decide to go to war. That decision would be up to Congress but once the war was declared and the Army and Navy and the state militias were mobilized, the president/commander in chief would be in charge of leading the war effort until peace was restored.

For decades now, the United States has never been truly at peace. Congress hasn’t literally “declared war” since 1941. But the “authorization for the use of military force” (AUMF) seems close enough to a declaration of war as not to flout the Constitution. Both the response to the 9/11 attack of 2001 and the 2003 invasion of Iraq (authorized by Congress in 2002) were the subject of AUMFs.

Commander-in-chief powers

Since World War II at least (and really before that) presidents have asserted that their commander-in-chief powers include the right to use military (or covert) force anywhere they feel it is necessary or even just advantageous. Sometimes they seek congressional approval in advance, often not. And they generally do so only when they have calculated that the approval will be granted. There’s really no way to reconcile this arrangement with the original constitutional vision, but the U.S. Supreme Court has been unwilling to impose the original arrangement on any president.

Obama has taught constitutional law and surely understands all this much better than I do. He also, as president, inherited two still-running AUMFs, one for Iraq and one against terrorism.

In announcing his proposal of an AUMF to authorize what the United States is already doing to “degrade and ultimately defeat” the Islamic State, he did not restore the original constitutional arrangement. But the proposal, which will soon be debated by congressional committees, contains several features that strike me as a healthy step in that direction.

For starters, in his announcement, he said: “I do not believe this nation’s interest are served by endless war or by remaining on a perpetual war footing.” Wow.

He specified that the authorization for which he is asking would replace the open-ended 2002 authorization to invade Iraq, so in a sense, it is a net reduction in the kind of military authority the Oval Office now possesses.

Rather than seeking a broad, open-ended grant of war power, Obama’s proposed AUMF “does not authorize the use of the United States Armed Forces in enduring offensive ground combat operations.”

He proposes that the new AUMF expire in three years. Traditionally, AUMFs have no expiration date and have often been used to justify actions many years later that were clearly not envisioned at the time of the original vote. (Think Gulf of Tonkin resolution.)

Mini debate

PBS’ “NewsHour” put the proposal up for a mini-debate between two senators, Republican Deb Fischer of Nebraska and Democrat Tim Kaine of Virginia, both members of the Senate Armed Services Committee that will be reviewing the proposed AUMF. Their reactions were polite, but their differences were not too subtle.

Fischer thought the proposed language, for example, the explicit rejection of “enduring offensive ground operations,” and the decision to build a three-year expiration date into the AUMF were unwise.

Kaine felt the opposite on those two points. He seemed worried that language like no “enduring offensive ground operations” was too slippery and wouldn’t really ban anything, since ground operations could be deemed either not “offensive” or not “enduring.”

Fischer said the three-year expiration date would “limit the next president of the United States.”

Kaine felt the “sunset” provision was an excellent idea: “It doesn’t mean that operations finish. It just means that a president has to come back to Congress.”

In rolling out the AUMF, Obama had said explicitly that the three-year time limit was inserted so that the next president and the next Congress would have to “revisit the question at the beginning of the next president’s term.”

Kaine, sounding skeptical about some aspects of the proposal, said he nonetheless believes that some version of the authorization will pass because there is widespread support for action against ISIS. Fischer made no prediction, saying she would wait to see what happened and what came to light during the committee hearings.

To return to my statement at the top that this proposed resolution does little to restore the original constitutional balance, bear in mind that if the resolution goes nowhere, nothing will change unless the president decides, under his commander-in-chief powers, to do more, less or something different.

The full text of the proposed resolution is here.

The full Fischer/Kaine discussion is here.

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Comments (8)

  1. Submitted by Ray Schoch on 02/13/2015 - 10:44 am.

    Baby steps

    I admit I’m not much of a fan of monarchy, but as a doting grandfather, I’m very much a fan of baby steps, since they typically lead to larger and more substantial movement and maturity. While I understand Ms. Fischer’s reasoning, I’m much less concerned about that limitation than she seems to be, and a baby step away from rule by Executive Branch that requires the next president to go back and have a further discussion with Congress, dysfunctional as that Congress may be, seems to me to be a good thing.

    Primarily, I heartily endorse Mr. Obama’s statement that “I do not believe this nation’s interest are served by endless war or by remaining on a perpetual war footing.” As was shown in chart form just yesterday in Devin Henry’s piece about the federal budget, the majority of our “discretionary spending” is taken up by the largest military establishment on the planet, and at a time when there are no state-sized enemies of the country. Nuclear submarines, multimillion-dollar fighter planes, and sophisticated electronic weapons are of limited usefulness against enemies we DO have (e.g., ISIS), and, as even “conservative” economists acknowledge, weapons production contributes nothing to GDP because of their narrow and specialized use.

    As hawkish former Senator Gary Hart has written, building up the defense establishment makes little sense if the society being defended is allowed to fall to ruin. An awful lot of engineers and other highly-skilled workers could be just as gainfully employed using the funds freed by a reduction in defense spending to, among other things, rebuild neglected infrastructure, extend fast internet service, or figure out ways to deal with what is obviously a climate that, as it changes, will affect everyone in every state.

  2. Submitted by Hiram Foster on 02/13/2015 - 10:46 am.


    People often talk about how there is a constitutional balance. I wonder if that’s the right way to look at it. Maybe the executive and legislative branches weren’t meant to be balanced, maybe they were meant to be different. The concept after all of “balance” is a metaphor. The legislature has legislative power, the executive has executive powers, Doesn’t this have more to do with complementary powers than balanced powers?

    The first line of Article I refers to legislative power, the power to make laws.Yet very often, legislatures seem to devote energy to doing things that seem completely divorced from any legislative or law making activity. Legislators speak of “oversight” responsibility. Given two equal branches, how can one oversee the other? Does the executive branch have the right to oversee the legislative branch? In the article above, we see legislators speculate about the meaning of various laws and the constitution. Isn’t it the job of the third branch of the government, the judiciary to tell us what the laws mean? Why to the speculations of what laws from legislators have any more or any less validity than those coming from the executive branch? Why do such speculations in a constitutional sense , as distinct from a political sense, at all?

  3. Submitted by Paul Brandon on 02/13/2015 - 11:23 am.

    Taken literally

    Congress (the legislative branch) has the power to make laws. but not to enforce them.
    That is the power of the Presidency (the executive branch).
    It’s in the language:
    ‘Legis’ — law
    ‘to execute’ — to carry out; cause to occur.

    The problem is the current ‘60% rule’:
    Under current congressional operating rules it is impossible for legislation to be enacted without a super majority of 60%. This is a good part of the reason why Congress has become so ineffective; it is too easy for the minority party to filibuster or otherwise block legislation. And then there’s the Senatorial ‘hold’ (pocket veto).

    So Congress has set up a situation where it has become inevitable that a President will use executive power to fill the vacuum left by an inactive Congress.

    In the long run, the answer to this system problem is a change in Congressional operating rules (by amendment if necessary) to allow a minority to delay a vote by a fixed amount of time, but not indefinitely.

  4. Submitted by Hiram Foster on 02/13/2015 - 12:35 pm.


    Maybe just about the most extraordinary irony I know of is that while legislators love to complain about the encroachment on their powers by other branches of government, no one has done more to limit and render ineffective the exercise of legislative power than than legislators themselves. The 60% rule mentioned by a preceding poster is one of many self inflicted instances of the legislative branch limiting it’s own ability to exercise the legislative authority allocated to it by the founders.

    This posting is a comment on an article about congressional war powers and their limitation. The problem, if there is one, could be solved if only Congress chose to act. They can pass that does whatever they please. They simply have made a choice not to. Now, admittedly there are reasons for that, some of them good ones, but the fact remains that Congress does have the power to address these issues, and their failure to do that is the result of their choices, not anybody else’s.

  5. Submitted by Peder DeFor on 02/14/2015 - 08:36 am.


    As a thought experiment, imagine a conflict where the opponent very loudly and publicly announced what their limits would be. Let’s imagine that Putin announced that a) absolutely no Russian ground forces would be allowed in the Ukraine and b) Russia would give up any interest in the happenings there in three years. Given those limitations, could you whip up a strategy ensuring Ukrainian Independence?

    Of course you could. And ISIS will use this AUMF to their advantage too. Especially the time limit. The most obvious way they can use a three year limit is to tell the locals that any US support is limited and fickle. I’m sure there are others.
    From a military standpoint, the best thing to do is to simply announce an intention of actually defeating the enemy. If we’re not willing to do that, then we shouldn’t get involved. We should just admit that the terrible people will do terrible things and we’ll stand on the sidelines. (Or maybe these are made up ‘monsters’ and we don’t have to worry at all, right?)

    • Submitted by Doug Gray on 02/19/2015 - 12:22 pm.

      The Vietnam Era called…

      …it wants its military options planning framework back. I for one am glad that for at least the next few years the US has an Administration that understands there is viable middle ground between insanely redoubling the mindless militarism that has only prolonged the problems of the Middle East and abandoning our interests in, not to mention fecklessly abdicating our responsibilities for, a region of the world we have helped to fubar since at least 1946.

  6. Submitted by Paul Brandon on 02/14/2015 - 09:44 am.

    Constitutonal Balance

    In part, this was originally a practical consequence of 18th century transportation and communications.
    Since Congress could not communicate with the President or the armed forces in real time, nor get to Washington to/from their home states in less than several days, it was simply not possible for it to deal directly with critical issues like war. It was dependent on delegating this power to the executive.
    Even the executive had limited information; Lincoln was, I believe, the first Commander In Chief to follow campaigns in real time (via the telegraph).
    Before then it was Paul Revere on his horse.
    So the division between Congress setting policy and the President carrying it out was a necessary one. Now the lines are blurrier.

  7. Submitted by Hiram Foster on 02/15/2015 - 11:52 am.


    My own opinion is that our government was designed the way it was because of slavery. The southern states were terrified of the possibility that a strong central government could abolish slavery. Their solution was to create a government that, in order to act, would require a consensus of the states to do anything, which effectively gave the south a veto power over slavery issues. And in fact, the early expansionist era of our country was pretty much dominated by considerations which were designed to maintain the balance between slave an free states in 1787.

    These fears of a strong central government which would have the power to abolish slavery by law were not unjustified. The British Parliament, the model that our founders both followed and rejected eliminated slavery rather peacefully through the process of law. Our founders were successful in making such a peaceful solution impossible, but the result was the most tragic and catastrophic war in our history, one whose consequences we are still living with today.

    Maybe the Brits had it right after all.

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