War

Here Is What the 2020 Candidates Say About the President's Power to Wage War Without Congressional Approval

The strongest critics of unilateral decisions to attack other countries include Tulsi Gabbard and Bernie Sanders, while Joe Biden thinks anything goes.

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Responding to a 2007 Boston Globe survey of presidential candidates, Barack Obama rejected the idea that the president has the authority to wage war without congressional authorization whenever he thinks it is in the national interest. "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation," he said.

After he was elected president, Obama took a different view, maintaining that he did not need congressional approval to attack Libya, Syria, or ISIS. He also defied the requirements of the War Powers Resolution, absurdly arguing that dropping bombs and firing missiles from drones in Libya did not constitute "hostilities" under that law.

Given that experience, we probably should take statements on this subject from the 2020 presidential contenders with a grain of salt. It is nevertheless instructive to see how they responded to a New York Times survey about executive power, since they express a pretty wide range of views and what they say now can be held against them later. The 14 Democrats and two Republicans who responded to the survey can be roughly divided into three groups: four who are signaling that they will do pretty much whatever they want when it comes to deploying the country's military might, eight who argue that the president's war powers are more constrained than residents of the White House historically have been willing to admit, and four who fall somewhere in the middle.

Article I of the Constitution says Congress has the power "to declare war," while Article II makes the president "commander in chief" of the armed forces. Recent presidents have taken the position that the latter power effectively nullifies the former power, making it unnecessary to seek a declaration of war even in situations where the country does not face an imminent or actual attack.

The Times specifically asked the presidential candidates about the view, backed by the Justice Department's Office of Legal Counsel (OLC), that "the Constitution authorizes the president, as commander in chief, to order the military to attack other countries without congressional permission if the president determines that this would be anticipatory self-defense or otherwise serve the interests of the United States—at least where the nature, scope and duration of the anticipated hostilities are 'limited.'" The paper also asked, "Under what circumstances other than a literally imminent threat to the United States, if any, does the Constitution permit a president to order an attack on another country without prior Congressional authorization?" And it wanted to know whether the candidates thought "bombing Iranian or North Korean nuclear facilities" would require congressional approval.

Here are the most telling responses, divided into unconstrained and constrained views of the president's war powers.

UNCONSTRAINED

Former Vice President Joe Biden (D): "The Constitution vests the President, as Commander in Chief and Chief Executive, with the power to direct limited U.S. military operations abroad without prior Congressional approval when those operations serve important U.S. interests and are of a limited nature, scope, and duration…Only in the most exigent circumstances would I use force without extensive consultation with Congress." Since "U.S. interests" are in the eye of the beholder and the president unilaterally decides when military operations are "limited" enough that they do not qualify as "war," this formulation amounts to a blank check. And notice that Biden promises "consultation" with Congress, which is emphatically not the same thing as seeking formal approval.

Sen. Kamala Harris (D–Calif.): "The President's top priority is to keep America secure, and I won't hesitate to do what it takes to protect our country in the face of an imminent threat in the future. But after almost two decades of war, it is long past time for Congress to rewrite the [2001] Authorization for Use of Military Force that governs our current military conflicts. The situations in Iran or North Korea would require careful consideration of all of the surrounding facts and circumstances." That was her entire response.

Sen. Amy Klobuchar (D–Minn.): "I agree with the Office of Legal Counsel's determination that the President is authorized to direct the use of force where the nature, scope and duration of the anticipated hostilities are limited. I also believe that the President has a solemn duty to protect and defend the United States and that the Constitution requires Congress to authorize war."

Rep. Tim Ryan (D–Ohio): "The President has a unique obligation to defend the country and it should be handled on a case-by-case basis on the actual security risk it poses to the country."

CONSTRAINED

South Bend, Indiana, Mayor Pete Buttigieg (D): "I am concerned that the Executive Branch has stretched the President's unilateral war-making authority too far.….[The OLC's position] acknowledges the reality that a President may need, in rare and extraordinary circumstances, to take swift action in response to attacks or imminent threats of attack. But while it may reflect history, it strays from our Constitution's design. Moreover, it lacks criteria for determining which 'national interests' qualify, as well as any identifiable limiting principles on what constitutes 'war.'"

Rep. Tulsi Gabbard (D–Hawaii): "I do not agree with OLC reasoning. The president is the commander in chief of our armed forces. This gives the president the power to respond militarily to attacks on the United States. Congress maintains the responsibility to declare war. As FDR demonstrated when he asked Congress for a declaration of war after Pearl Harbor, the president must seek congressional authorization for actions beyond an immediate response to an injury of [or] threat of it. Article I, Section 8, Paragraph 11 unequivocally assigns the authority to authorize war to the Congress, not the Executive. We need to maintain military readiness but also respect the separation of powers that is the bulwark of our liberties as Americans."

Former Rep. Beto O'Rourke (D–Texas): "In situations where the use of force is necessary, absent an imminent threat to our national security, I will take that case to Congress and the American people to seek authorization."

Sen. Bernie Sanders (I–Vt.): "While the president has the authority over the conduct of war once it has been declared, the Founding Fathers gave the power to authorize military conflicts to Congress, the branch most accountable to the people. Certainly, [while] the president must have the ability to defend our country from imminent attacks or other extraordinary circumstances, the current guidelines violate the text and spirit of the Constitution, and have been used to justify military action that clearly falls under the authority of Congress's War Powers."

Former Rep. Joe Walsh (R–Ill.): "The OLC opinions on this matter leave too large a door for the executive branch to walk through when justifying unpopular use of force…Congress must have a meaningful role in contexts in which we are considering sending our troops to war. As President, I would commit to seeking congressional authorization before starting armed conflicts in new theatres against new adversaries.…It is inexcusable to exploit a statute passed just three days after the terrorist attacks of September 11th [the 2001 AUMF] to [support] military action abroad without congressional approval."

Sen. Elizabeth Warren (D–Mass.): "There are some situations—such as repelling an attack on the United States and protecting the lives and property of Americans abroad—that have been recognized for more than a hundred and fifty years to allow for the use of force without prior congressional authorization. But in recent decades the Justice Department has significantly expanded that category. These newer justifications, which consider national interests and the anticipated nature, scope, and duration of hostilities, are so broad and flexible that they offer few logical or practical limits and can be used to initiate conflicts that Congress should have to authorize."

Former Massachusetts Gov. Bill Weld (R): "It is imperative that the government of the United States be able to respond swiftly and decisively to hostile threats to our safety, security, and other essential interests. This does not require evisceration of our Constitution's unambiguous assignment of war making powers to Congress. This power has been inappropriately compromised and eroded over a number of successive Presidential administrations and various Congresses in the hands of each of the major parties. The O.L.C.'s reasoning is simply a recent manifestation. The Office of Legal Counsel's contra-Constitutional reasoning and its conclusions are incorrect."

Marianne Williamson (D): "Any offensive use of the military by the President requires prior express congressional authorization.…The President, however, may respond unilaterally in self-defense to repel foreign aggression that has already broken the peace….All of history shows the executive branch chronically concocts excuses for war to aggrandize power and earn a place in history, including limitless power to kill, spy, detain, or torture citizens and non-citizens alike free from congressional or judicial accountability. A presidential war not declared by Congress is the classic definition of an impeachable offense that should result in the President's trial in the Senate and removal from office."

The other four candidates who participated in the survey—Sen. Michael Bennet (D–Colo.), Sen. Cory Booker (D–N.J.), Montana Gov. Steve Bullock (D), and former Rep. Bart Sestak (D–Pa.)—suggested that they take a relatively narrow view of the president's war powers. But Bennet said his view is only "slightly more narrow" than the OLC's, Bullock did not say when congressional approval is required, and Booker and Sestak both left the door open to unapproved military action in defense of "interests."

Judging from this survey, the most full-throated critics of unconstrained presidential war making are Gabbard, Sanders, and Williamson, although Warren and the two Republicans are not far behind. And since presidents are unlikely to be less interventionist than they indicate during their campaigns, people who are appalled by what the military does in the name of "defense" should be wary of candidates who talk like Biden, Harris, Klobuchar, and Ryan.

Do these words matter? Maybe not. "The next Democratic president will happily accept new rules on tax releases, but will have a harder time accepting constraints on security clearances and emergency or war powers," Harvard law professor Jack Goldsmith, who ran the OLC during the George W. Bush administration, told the Times. "Institutional prerogative often defeats prior reformist pledges."

A bigger problem than presidents who break campaign promises to restrain themselves is a Congress that refuses to restrain them. The War Powers Resolution was enacted in 1973, but Congress did not even try using it to curtail a president's military adventures until earlier this year, when both houses approved a resolution condemning U.S. participation in Yemen's civil war. Although it was ultimately vetoed, that resolution, combined with the resolution against Donald Trump's declaration of a border wall emergency (also vetoed), provided some reason to hope that the current president is erratic enough to awaken a slumbering Congress.

"I will encourage members of Congress to reassert and exercise their constitutional role in decisions to commit their constituents and communities to supporting our military operations," Buttigieg said in the Times survey. The fact that Buttigieg, who takes a relatively constrained view of presidential war powers, did not leave open the possibility that Congress might decline to support military operations favored by the president speaks volumes about the legislative branch's abdication of responsibility.

NEXT: The Only Thing Americans Agreed on Yesterday Is That John Bolton Sucks

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  1. WW II declaration of war against Japan didn’t take 90 days. Anything except immediate self-defense (as in shooting back at the attackers) should be off limits.

    On the other hand, all that Atlantic Neutrality Patrol crap was against public and Congressional wishes, all the banana wars were without a declaration of war, Jefferson didn’t wait for a declaration of war, so why worry now?

    1. so why worry now?

      Because Jefferson didn’t have nukes?

      1. and our enemies didn’t have nukes either and that has kept teh U.S form attacking nations that have them. give every one nukes like gun control with more guns

        1. That’s why “denuclearization” is not going to happen anywhere. No nation that has nukes now is ever going to give them up. It’s their only insurance against being attacked by the USA.

      2. Korea
        Vietnam
        Panama
        Granada
        Somalia

        On and on the list goes. Why worry now?

    2. I take a slightly different tack.

      Constrained under normal conditions. However, I do not think that the President should need to get a declaration of war from Congress, even for protracted hostilities, in the case where a foreign nation has issued a formal declaration of war against the US

      1. Why not?

        There’s still a big difference between declaring war on someone and being able to make good. If North Korea declares war on the US are we going to tell the President ‘you go!’ and let him go blow shit up all over the place despite the Norks having basically no ability to harm us?

        Or would it be better to just laugh at them?

        1. “There’s still a big difference between declaring war on someone and being able to make good. If North Korea declares war on the US are we going to tell the President ‘you go!’ and let him go blow shit up all over the place despite the Norks having basically no ability to harm us?”

          Not all over the place, just in North Korea.

          “Or would it be better to just laugh at them?”

          That’s a case by case policy issue (is there or isn’t there a genuine threat), that I don’t consider relevant to the general issue of should the president be able to respond in full to a declaration of war against the US even if Congress can’t get it’s shit together.

          1. They wouldn’t be able to hurt us in Korea if we didn’t have a hundred thousand or so soldiers standing right there.

      2. Presuming that they don’t have bombers and troop ships en route, Congress has plenty of time to convene and respond with a declaration of war (if they choose). This situation doesn’t create the need for unilateral action by the President.

  2. “”Given that experience, we probably should take statements on this subject from the 2020 presidential contenders with a grain of salt.””

    Anyone who hasn’t learned to take everything any candidate says anytime with a grain of salt hasn’t learned shit about politics.

    1. Anyone who hasn’t learned to take everything any candidate says anytime with a metric ton of salt hasn’t learned shit about politics.

      FTFY.

    2. Anyone who hasn’t learned to simply discount everything a candidate says and look at their actual record hasn’t learned shit about politics.

      Salt or not salt.

    3. Anyone who hasn’t learned to take everything any candidate says anytime with a grain of salt hasn’t learned shit about politics.
      Yet Trump was held to statements he made on the campaign trail as proof of his intent when he made the executive order “Protecting the Nation from Foreign Terrorist Entry into the United States”.
      I guess those leftist “judges” haven’t “learned shit about politics”.

  3. The last guy who went to Congress and asked for formal authorization to deploy the military was George W Bush, for Iraq. That was nearly 17 years ago. Sadly, at a time where we really need sober and reasoned discussion in Congress, it is impossible to do, given the acrimony there.

    POTUS Trump has inherited a bad situation in Iraq, Syria, and Afganistan. I appluad his efforts to end those conflicts. It is time to bring our troops home as expeditiously as possible. I would not stop there. I’d pull out of Europe as well as they’re a bunch of whiny ingrates who forget that my country bailed their sorry asses out twice. If Europe wants to play nicey-nice with the Russian Bear – go for it….on your own.

    1. But but – the CHINESE! We need tariffs to drive American business away from the tyrannical Chinese, we can’t then turn around and abandon Europe to the tyrannical Russians! Its all about protecting America.

      1. LOL….Ok, but this article is talking about how POTUS’ just send troops wherever they like, in whatever quantity they like, and how the Congress is abdicating their responsibilities WRT authorizing the use of force. I do not want any POTUS with that kind of authority.

        We desperately need reasoned discussion in DC regarding our military engagements around the world, and whether those engagements are truly in our national interest….and it is not happening because of the bitterness and acrimony of Team R and Team D.

        When I see a trade article, I’ll rant about the Red Chinese. 😛

    2. The last guy who went to Congress and asked for formal authorization to deploy the military was George W Bush, for Iraq.
      Yet, Congress, still didn’t “declare war”, which is the power the Constitution grants.
      “Declaring war” is more of an administrative action to put the country on a “war footing”. eg, Jane Fonda was protected from treason charges, because we hadn’t “declared war” on Vietnam, making them an enemy to give “aid and comfort” to, which she clearly did.
      What would happen if Congress “declared war” and the Commander in Chief said “I’m not sending any of our forces”?

  4. Bernie Sanders?!? {shudder}. Besides being pro-choice, a long time dove who wants to allow for sensible immigration and decriminalize drugs what’s he bring to the table of libertarian thought? Libertarian socialism? Why that’s just another name for Soviet command-and-control totalitarianism!

    1. Libertarian Socialism would be those who wish to live as socialists pooling all their wealth and distributing it as their chosen governing bodies dictate, and planning and conducting all their business affairs collectively, without forcing anyone else to join them. Notice that nobody who claims to be socialist or communist in this country is actually doing that.

      1. Libertarianism doesn’t care how you organize your groups. All it cares about if if its voluntary.

        If its voluntary, its just libertarianism. No need for a hyphen.

        If its not, its not libertarianism, not matter how many hyphens.

    2. “sensible immigration”

      Actually the only sensible, anti-racist policy is 100% open borders. Which Sanders has bizarrely referred to as a right-wing plot to drive down wages for the benefit of billionaires. Nonsense!

      Don’t get me wrong, of course I’ll vote for Sanders if he wins the nomination. But his skepticism of the Koch / Reason immigration agenda is one of the major problems preventing him from joining my top tier of 2020 hopefuls. (Another problem is he’s a privileged straight white cis-male, which I find boring.)

      1. When are you going to realize that parody isn’t even possible anymore?

        1. I think he’s on autopilot by now.

      2. Hey that’s a good one. Do another one about kids dying in concentration camps because Dump got a bee in his bonnet from something he saw on Fox and Friends. Pretty please.

        1. I don’t know anything about bees. But I do know that Drumpf is running literal concentration camps in which people are literally forced to drink from toilets.

          I’ll never forget how furious I was when I first saw that photo of children sleeping on the floor in a chain-link cage. It was that precise moment when I grasped the full extent of Drumpf’s draconian war on immigration. No Democratic President — certainly not a Nobel Peace Prize winner like Obama — would ever put children in cages.

          1. Predictable. Obama did it so this legitimizes everything Dump does. Got it, Trumpian douche.

        2. You’re really bad at this

          1. Like I said above, being good at it can’t even be done anymore. There is now no position so ridiculous or extreme that someone isn’t sincerely expressing it, and being taken seriously.

            1. That’s what makes OBL funny.

              I was referring to the rather poor attempts by the anti-OBL poster

  5. The real problem here is not the Presidential Candidates but the Congress that refuses to rein in the President’s adventures. I would suggest that we not press the Presidential candidates, but rather press Congressional candidates. Question should be “how will you vote to limit the President’s actions to start military conflicts”? This should be a critical issue. I would also suggest that for a President it is almost always easy to take military action than to not take action. We need to change this dynamic and let the President know we will support a non action.

    1. I agree with Moderation4ever on this.

      Now excuse me while I shower for a few hours.

    2. No, the problem is coercive government with an authoritarian structure which enables this shit.

    3. Moderation in all things.

      Moderation is a thing.

      Moderation only in moderation.

    4. Congress doesn’t even enforce the nearly blank checks they wrote the President long ago.

  6. Now how would they have answered with a democrat in the white house?

  7. The problem with a formal declaration of war is that it implies that the goal is victory. Today, the goal is to keep the war going as long as it is profitable, and then withdraw in defeat and seek the next war opportunity.

  8. I watched Gabbard on Dave Rubin the other day and was pretty impressed. While she is much more to the left on many issues than I would like, she at least seems to get the Constitution and separation of powers and doesn’t buy into all the identity politics BS and Team before all else thinking. But she’s not a good team player, so the DNC has no use for her.
    If she weren’t from Hawaii, where being a Republican is pointless, I could imagine her being a centrist republican.

    1. Lots of Dems dislike her simply because non-Dems applaud her merits. The DNC is following a good swath of their base on this.

      1. Lots of Dems probably don’t even know that Hawaii is in the United States.

        1. Given Americans’ well-documented issues with geography, I doubt either team has a monopoly on stupid, there.

      2. Dems dislike her because she used to not be woke.

        1. And her father was behind the anti-gay marriage amendment in Hawaii.

  9. Will you get fooled again?

  10. You think a Democrat President is going to be held accountable to live up to what they claim to believe on the campaign trail? Have you been paying attention Sullum?

  11. If only we had a constitutional amendment that allowed citizens to keep and bear their own arms, and it was necessary to call out the militia to engage in any prolonged conflict. Then the citizens could control when and where we fought by answering the militia call either ‘yes’, or ‘no’.

    1. the most neglected part of the Constitution is where it says the Army can only be funded for 2 years at a time.

  12. ”Given that experience, we probably should take statements on this subject from the 2020 presidential contenders with a grain of salt.”

    If you like your foreign policy, you can keep it. Period.

  13. (D) only hates war until it can wage war.

    1. + 10 Aleppo kids.

  14. So essentially the modern President likens themselves to Roman military commanders.

    Boy who would have thought the Rubicon was THAT long!

  15. You know what? It doesn’t matter what they say on the subject. No, not even Gabbard.

    You know why? Because once in office, with this power in hand, every single one of them will be ok with *their* unilateral use of force. Just like every single one of their predecessors was all about how Congress needs to be involved. And then when in office decided that ‘Congress needs to be involved’ means ‘Congress needs to rubber stamp this shit and if they won’t I’ll just do it anyway’.

    Biden’s – to his credit – the only one of them being honest about it.

  16. “Rep. Bart Sestak” – is that a Simpsons reference? Typo version of Admiral?

    The former Supreme Allied Commander’s name is Joe.

  17. Sounds like Beto had the best answer.

  18. The way I see it, the President can only be Re-active with the military. If the country is invaded, he can begin issuing orders for the military without waiting for Congress to convene.

    It’s the role of the People, through Congress, to be pro-active: To decide exactly who the enemies are and then declare war upon them. Any President who tries to be pro-active with the use of military force is exceeding their natural authority. Unfortunately, this probably applies to every president going all the way back to….Warren Harding?

  19. How ironic that they’re raging about this when running against the first President in 30 years who hasn’t started an undeclared war with anyone. One of those candidates was VP in an administration that started multiple undeclared wars.

    I notice that this fact flew over Sullum’s head…detestable progressive lickspittle that he is.

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