Foreign Policy

This Is the Executive War-Making the Founders Tried To Prevent

The framers of the Constitution were quite right that wars should be difficult to start and easy to end.

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"On the Iraq War Resolution being voted on tomorrow in the House of Represenatives [sic]," President Trump tweeted Wednesday, "we are down to 5000 soldiers, and going down, and I want everyone, Republican and Democrat, to vote their HEART!"

Trump's apparent willingness for Congress to rescind the 2002 Authorization for Use of Military Force (AUMF) in Iraq is a curious addition to his administration's often contradictory foreign policy. Two weeks ago, the expectation was that he'd veto a war powers resolution Sen. Tim Kaine (Va.) introduced to require obtain congressional authorization for any war with Iran. And a week before that, the administration told Congress the Iraq AUMF—the very measure about which Trump now invites lawmakers to vote their heart—provided legal cover for the strike on Iranian Gen. Qassem Soleimani.

Precisely because of creative uses like that, ending the Iraq AUMF is overdue. But it won't address our broader problem of unaccountable executive war-making. It won't block the false claims of "imminence" that—as we saw in the jumbled justifications for the Soleimani hit—are the means by which that war-making will continue.

Imminence matters because of how foreign policy prerogatives are split between the president and Congress. The framers of our Constitution were chiefly interested in limiting the authority of the executive, but neither did they wish to leave the United States undefended against attack.

To satisfy the first concern, war powers are vested in the legislature. "There is a material difference between the cases of making war, and making peace," James Madison recorded Oliver Ellsworth saying at the Constitutional Convention. "It should be more easy [sic] to get out of a war, than into it," he advised. George Mason agreed, arguing that the president is not to be trusted with authority to initiate military action, and that the precision of "declare war" is preferable to "make war" as a means of "clogging rather than facilitating" the march toward conflict.

The president's role as commander-in-chief, then, has two components. One is to conduct a war once duly underway. The other, as Madison's convention notes likewise indicate, is the power to "repel sudden attacks," to "repel [but] not to commence war." The president may not attack on his own authority, but if the United States is attacked, the president doesn't have to wait for congressional permission to respond.

But what if an attack is imminent? It hasn't happened yet, but it will unless urgent action is taken. Perhaps a missile hasn't struck, but we know it's incoming. The Constitution doesn't explicitly address imminent attacks, but the defense exception to its assignment of war powers has traditionally included such cases.

There's no single, authoritative legal definition for imminence—the Trump administration, for example, is not bound by the test of imminence the Obama administration's legal advisors preferred, which included factors like "the nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity," and more. That uncertainty provides any president who wants to bypass Congress on foreign policy decisions a loophole big enough for a whole war (or two or three). By invoking an "imminent" threat, the president is functionally able to go to war unilaterally, ignoring Congress altogether. This is a fig leaf that allows Congress to avoid difficult votes of war and peace.

It isn't difficult to understand the rationale for this system when the threat is legitimately imminent. It also isn't difficult to perceive the risk of abuse.

That risk is exactly the problem with the administration's changing stories about the killing of Soleimani. "The Fake News Media and their Democrat Partners are working hard to determine whether or not the future attack by terrorist Soleimani was 'imminent' or not, & was my team in agreement," Trump tweeted after his team's evolving explanations for the strike came under scrutiny. "The answer to both is a strong YES., but it doesn't really matter because of his horrible past!"

It does matter. If Trump is wrong in his claim that Soleimani had a truly imminent attack underway—and comments from Secretary of State Mike Pompeo as well as legislators briefed by the administration have cast major doubt on that narrative under any normal understanding of imminence—the assassination was illegal. Not just illegal in the ordinary sense. Unconstitutional. An executive usurpation of legislative authority.

Rule of law and constitutional constraints matter far beyond this immediate situation, beyond what we may think of Soleimani, Trump, or the prospect of war with Iran. Indeed, the Soleimani strike is only the most recent example. Presidents have long ordered extra-constitutional military action, and Congress has so far refused to stop them.

It matters because the framers of the Constitution were quite right that wars should be difficult to start and easy to end. They were right that a single person who could lead a whole nation into war would often do so, that the bellicose habits of the kings of old Europe must not be replicated in the United States. They were right that Congress—sluggish and querulous and by design closer to the mood of the nation it represents than one individual president can ever be—would be slower to rush into reckless military intervention than an autonomous commander in chief.

They were right, in short, to fear exactly the dangerous system of executive war-making we have today.

NEXT: Dershowitz Defends Trump's Quid Pro Quo Logic: 'If I'm Not Elected the National Interest Will Suffer Greatly'

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  1. Wait – did Trump just tweet something sympathetic about Congress repealing a war resolution?

    1. but Trump was wrong to do that anyway.

      1. That’s not what the article says, at all.

        1. Bless your heart.

        2. No, it’s not, but it won’t the stop some of the fucking retards on this website from saying it does. They make their own “reality”. Reason Derangement Syndrome is in full bloom.

          1. Okay, Suderman.

    2. He started WW3 a few weeks ago. Everything else is irrelevant at this point.

  2. Hey it’s another article by an idiot what is that 13 today

  3. It does matter. If Trump is wrong in his claim that Soleimani had a truly imminent attack underway—and comments from Secretary of State Mike Pompeo as well as legislators briefed by the administration have cast major doubt on that narrative under any normal understanding of imminence—the assassination was illegal. Not just illegal in the ordinary sense. Unconstitutional. An executive usurpation of legislative authority.

    That is just fucking horseshit. The President’s Article III powers absolutely extends to taking actions like these. At some point it becomes a war that needs congressional authorization. But, a single strike against a guy who has been waging war against the Us for decades not so much.

    Articles like this just discredit legitimate arguments about nonintervention and war powers. By choosing to make such absurd arguments they serve to discredit the entire case. I really wish people like Bonnie here would find something else to write about.

    1. Series of 12 attacks by Kataib Hezbollah over 6 weeks, culminating in storming the US embassy, where “Suleimani leader” written on the wall
      Then Suleimani is in Iraq with leadership of Kataib Hezbollah just days after the embassy attack.
      Despite it being irrelevant, I think it’s safe to say another attack was indeed imminent.
      Unless you’re a brain dead moron writing for a progressivism pushing publication

    2. I like Bonnie. Don’t entirely agree with her but she’s better than the other B bylines here. She has something else to write about but it is Mennonite theology so I kinda prefer the peace and politics stuff.

    3. I wonder John….should we not applaud this if it is true?

      Trump’s apparent willingness for Congress to rescind the 2002 Authorization for Use of Military Force (AUMF) in Iraq is a curious addition to his administration’s often contradictory foreign policy.

      I use the conditional ‘if’ because Unreason is not so hot at providing full and complete context on anything related to POTUS Trump.

  4. Bottom line: you storm our embassy, we blow you apart.
    Don’t fuck with USA
    (or at least keep it minor and relatively polite)

  5. //It matters because the framers of the Constitution were quite right that wars should be difficult to start and easy to end.//

    I guess I missed the part where the framers posited that wars are “easy to end.” The entire reason the framers intended the commencement of a war to be difficult is precisely because wars are NOT easy to end.

    “Reason”

    1. Also, the Founders warned against using quotes and outside notes relating to “meaning” of the US Constitution.

      Only the US Constitution is supreme law of the land.

    2. “something, something, over by Christmas” – every country starting a war ever

  6. This Is the Executive War-Making the Founders Tried To Prevent
    “On the Iraq War Resolution being voted on tomorrow in the House of Represenatives [sic],” President Trump tweeted Wednesday, “we are down to 5000 soldiers, and going down, and I want everyone, Republican and Democrat, to vote their HEART!”

    Fuck off Reason.

  7. //If Trump is wrong in his claim that Soleimani had a truly imminent attack underway—and comments from Secretary of State Mike Pompeo as well as legislators briefed by the administration have cast major doubt on that narrative under any normal understanding of imminence—the assassination was illegal. Not just illegal in the ordinary sense. Unconstitutional. An executive usurpation of legislative authority.//

    This is absurd.

    Without conceding that the imminence factor is even a requirement, if Trump had reason to believe that the strike that killed Soleimani was necessary to stave off an imminent attack, but was wrong in his assessment, why would that be an unconstitutional usurpation of legislative authority?

    How do you even reach this conclusion?

  8. OK, it has to be said.
    The USA has not been “at war” since VJ day.
    Even all the bullshit “authorizations to use military force” are not declarations of war. They claim we are at war with “terrorism”, but specify no nation-states as the enemy. So there is no enemy, there is no “war”.
    Just a bunch of fantasy driven legislators who want authority without responsibility.

  9. ending the Iraq AUMF is overdue. But it won’t address our broader problem of unaccountable executive war-making. It won’t block the false claims of “imminence” that—as we saw in the jumbled justifications for the Soleimani hit—are the means by which that war-making will continue.

    Well it sure as shit won’t hurt. Repeal of the ’02 AUMF will at least then require the Executive to *claim* imminent threat.

    I would argue the Soleimani hit clears the bar of imminent threat handily– but that’s a separate argument, that currently the Executive doesn’t even have to make, thanks to the AUMF. It’s been 18 years. Time for the AUMF to die.

    1. They were right, in short, to fear exactly the dangerous system of executive war-making we have today.

      We’ve had this system since 2001, has it only lately become dangerous?

      1. So, we’re just forgetting Somalia, Sudan, Serbia?
        And Others?
        It’s a pretty unbroken streak through at least Vietnam

        1. Well, I’d say the AUMF made explicit what had been merely implicit since Korea – Congress wants no part of the responsibility of declaring war but they want to retain the right to bitch about how the President exercises their Constitutional duties. Prior to 2001 they could at least pretend they were still relevant.

  10. And of course– wanting the troops out of Iraq, wanting the end of the AUMF is bad when Trump wants it.

    1. That’s not what the article says.

      1. Orange Man Bad!

      2. Time to quit White Knighting.

        1. It’s a form of Tourette’s.

        2. Go ahead and quote for me where the author admonishes Trump for wanting to end the Iraq AUMF, then.

      3. How would you know? You have the reading comprehension of a six year old.

    2. Just like ending Obama’s illegal executive war in Syria was bad.

  11. It does matter. If Trump is wrong in his claim that Soleimani had a truly imminent attack underway—and comments from Secretary of State Mike Pompeo as well as legislators briefed by the administration have cast major doubt on that narrative under any normal understanding of imminence—the assassination was illegal. Not just illegal in the ordinary sense. Unconstitutional. An executive usurpation of legislative authority.

    wat?

    I’m sorry Kristian. But 24+ years of Trump’s predecessors have made it pretty clear that the President can have people assassinated without requiring prior permission – and certainly without needing an ‘imminent danger’ justification.

    How many ‘imminent dangers’ did Obama and Bush kill at those weddings?

    As for attacking senior members of a government – that’s been a dead letter since at least Castro. How many times did Bush and Bush try to kill Hussein? And there’s Qaddaffi. Noriega. These aren’t even ‘senior members’ – they were, flat-out, heads of state that we tried to kill.

    What Trump did there might have been wrong – it certainly wasn’t illegal. Neither by ‘international law’ standards nor by US legal ones.

  12. Re: congress and military action. Consider this constitutional tool that even Jefferson didn’t notice
    http://lifeinafascistcountry.blogspot.com/2020/01/arti-sec8-subsec10-forgottent.html?m=1

  13. honest online career from home Earns upto $550 to $750 doller by way of work is simple on web. i have made $28K only month via chipping away on internet. Its right way and easy home work maybe a piece adolescent can complete this movement on web and benefits…. Read more  

  14. “Trump’s apparent willingness for Congress to rescind the 2002 Authorization for Use of Military Force (AUMF) in Iraq is a curious addition to his administration’s”

    Let that be YET ANOTHER slap in the face to all the, “We know what Trump is thinking and its so evil” crowd.

    The only reason they find such a thing “curious” is because it goes against their knee-jerk reactionary (emotional) led impulses that over-ride any amount of reason that might exist. It’s just like their “impulses” that Trump colluded with Russia. It’s just like their “impulses” that Trump wants to investigate corruption in Ukraine out of some sort of political election motive.

    Granite; The Politician field we have grown immune to almost always is exactly of that type and the exceptionalism of President Trump’s underlying principles in these areas cannot be denied.

    He proclaimed to be conservative-government and most of what he stands for is bringing the U.S. Constitution alive again.

  15. “Trump’s apparent willingness for Congress to rescind the 2002 Authorization for Use of Military Force (AUMF) in Iraq is a curious addition to his administration’s often contradictory foreign policy.”

    This is pragmatism, pure and simple, and these policies only seem contradictory from a neoconservative perspective.

    We should only initiate and continue force when doing so is in the best interests of American security. Initiating Iraq was not in the best interests of the United States, and neither is continuing to do so. Avoiding direct conflict in Syria was not in the best interests of the United States, so President Trump withdrew our forces from harm’s way. Honest Americans can disagree about what is in the bests interests of the United States and American security, but just because I don’t think the Soleimani strike was in the best interests of the United States or American security doesn’t mean President Trump didn’t think it was in our best interests–and disagreeing with President Trump about what is in our best interests doesn’t mean he isn’t applying the standard in a contradictory way.

    The idea that we should apply a consistent rule–apart from whether an engagement is in our best interests–is childish and absurd. It’s basically the idea that we should do things that go against the best interests of the United States in the name of some other consistency. Meanwhile, the standard of requiring that an engagement both be in the best interests of the United States and have a congressional authorization by Congress is the most limiting principle of the use of our military force. We might have avoided both Vietnam and Iraq using those principles–and wouldn’t have added any wars we didn’t avoid already.

    It was not in the best interests of the United States to launch a ground war in Lebanon in 1983. It was not in the best interests of the United States to remain in Somalia. It was not in the best interests of the United States to invade Rwanda. It was not in the best interests of the United States to invade Kosovo. It was not in the best interests of the United States to depose Saddam Hussein and occupy Iraq in 1991. It was not in the best interests of the United States to invade and occupy Iraq in 2003. And it is in the best interests of the United States to get out of Afghanistan and Iraq, which is why President Trump is doing his level best to get us out of both places.

    President Trump’s foreign policy is not only consistent internally but also consistent with the good decisions of his predecessors. Where’s the contradiction?

  16. Trump: doesn’t start any additional wars and has been more restrained than any of the last 5 presidents, actually trying to rescind orders that give him the power to fuck around in the middle east.

    Reason: HE SOUNDS LIKE A WARMONGER TO ME!

    11/10 Reason, wonderful logic.

    1. Meanwhile these same people sat around picking their ass while Obama assassinated an American citizen and his 16 year old son without trial or even any judicial oversight. Started a civil war in Syria. Assassinated Gaddafi then gloated about it. Assassinated Bin Laden in Pakistan without the knowledge or permission of the Pakistani government. Armed ISIS terrorists.

      And then these same people shit their pants when Trump ended Obama’s illegal Syrian war after almost a fucking decade.

      Reason is a pathetic bowl of fuck.

      1. eh, they did complain a little bit. They didn’t shit their pants and start screeching constantly as they do under trump.

  17. Kristian seems a little confused by foreign policy or government. Maybe she should go write about cats up trees, something commensurate with her journalistic abilities.

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  19. And you can go back to the banana wars or even the PI insurrection of the early 1900s…Presidents have been engaging in “splendid little wars” for over a 100 years. Korea though was the start of this insanity…CIA actions…Vietnam, Panama..hell at least Granada could be argued that US citizens were threatened…but Iraq 1, Bosnia, Iraq 2? WE lost our soul when we fought the cold war…Robert Taft and even Ike were right..the massive state built destroyed our republic.

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