The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Congress should act to reclaim its war powers
In a recent article in the National Interest, libertarian-leaning Republican Senator Rand Paul writes that Congress should reclaim its power to control the initiation of war:
Restoring the constitutional mandate that war needs to be authorized by Congress would go a long way to ensuring that a full-throated debate occurs before troops are placed in harm's way.
The Trump administration can take the lead here, but nothing prevents Congress from engaging in what is maybe its most important constitutional role: war authorization. Congress should be resolute and either pass an appropriate authorization or disapproval for current U.S. interventions while simultaneously repealing the 2001 and 2002 Authorization for Use of Military Force….
The implications of not adhering to constitutionally established roles have huge consequences for U.S. foreign policy. Strategic, operational and tactical considerations by a president and military leaders are of immense consequence. All of these powers are derived from the Constitution. If the Constitution isn't adhered to as the Founding Fathers intended, the nation and American credibility abroad suffer.
I don't agree with everything that Paul says in his article. But he is absolutely right on this issue.
Democratic Senator (and former vice-presidential nominee) Tim Kaine made a similar point in a recent speech:
Since the war against ISIL began in August of 2014, more than 5,000 members of the U.S. military have served in Operation Inherent Resolve either in Iraq or Syria….
The U.S. military has launched over 12,600 airstrikes. We're carrying out Special Forces operations. We're assisting the Iraqi military, Syrians fighting against the Islamic State in Syria, as well as the Kurdish Peshmerga in the northern part of the Iraq….
I'm a supporter of the President… [B]ut I've been very critical of this President for not vigorously attempting to get an authorization done. When the President spoke about the need to go on offense against ISIL in September of 2014, it took him six months from the start of hostilities to even deliver to Congress a proposed authorization….
But I've also been harshly critical of the Article 1 branch because, regardless of whether or not the president promptly delivers an authorization or not, it is Congress under article 1 of the Constitution that has the obligation to initiate war….
Madison and the other drafters of the Constitution knew that the history of war was a history of making it about the executive, the king, the monarch, the sultan, the emperor. But we decided we would be different and that war would only be initiated by a vote of the people's elected legislative body and at that point would only be conducted by only one commander-in-chief, not 435.
We've not had the debate. We've not had the vote.
This has been ironic because I have for four years been in a Congress that's been very quick to criticize the President for using executive action. This is an executive action that most clearly is in the legislative wheelhouse and yet it has been an executive action that the body—and I am making this as a bipartisan and bicameral comment—the body has been very willing to allow the president to make.
Kaine has long been a principled critic of President Obama's unconstitutional initiation of war without congressional authorization, which this administration undertook in the case of both the 2011 war against Libya, and the still ongoing war against ISIS.
Enforcing the constitutional requirement of congressional authorization is not just a legal necessity. It also helps protect us against initiating dubious conflicts at the behest of a single man, and increases the likelihood of success in those wars we do choose to fight.
Ensuring that the president cannot start a war on his own will be especially important in the upcoming Trump administration. To put it mildly, Donald Trump is not known for his knowledge of foreign policy, and has issues with impulse control. With him in the White House, the danger of blundering into an unwise conflict is likely to be greater than usual.
But the problem goes beyond Trump, Obama, or any other individual president. No one person, however admirable, should have the power to start a war on their own. If Hillary Clinton had won the election, she could not be trusted with that power either. Presidents have the power to defend against actual or imminent attacks initiated by others. In such a case, war has already begun, so American military action would merely be continuing it, not starting a new conflict. But things are very different when we are considering military action against an adversary with which we are not already at war.
As Paul and Kaine suggest, Congress should repeal or modify the 2001 Authorization for the Use of Military Force against the perpetrators of the 9/11 attacks, and the 2002 Iraq AUMF, and pass a more narrowly focused authorization directed at ISIS and its allies. The new ISIS AUMF should include a provision indicating that it is the sole authorization for the use of force in this conflict. Congress should also pass legislation barring funding and other support for future wars initiated without congressional debate and authorization. Such legislation might not completely eliminate unconstitutional warmaking. But it would at least make it more difficult.
Trump could potentially veto this type of legislation. But a veto could be overridden if the bill gets the kind of broad bipartisan support it deserves. Moreover, Trump might not want to veto legislation that would, among other things, help legitimate the war against ISIS, which he claims he wants to wage more aggressively than Obama has.
A GOP-controlled Congress may well be reluctant to impose constraints on a president of their own party. Growing partisan bias could easily kill efforts to rein in executive power in this field, just at it has led both Democrats and Republicans to tolerate a wide range of other abuses by presidents of their own party.
But congressional Republicans should consider this: If Trump gets us into an unwise war that becomes a disaster, the public is likely to blame the GOP as a whole, not just the president alone. In this age of growing partisan polarization, ticket-splitting is less common than in the past, and voters often punish the entire party for the real or perceived failings of its president. If Republican members of Congress are unwilling to curb presidential warmaking out of adherence to constitutional principle, perhaps they might do so out of political self-interest.
