Originally published in Liberato.US on November 12, 2017
Reposted with permission of the author
U.S. military activities in the Middle East and Africa and the prospect of war with North Korea have been in the news in recent weeks. Under the U.S. Constitution (Article 1, Section 8), only Congress has the power to declare war. Presidents cannot declare war on their own.
There are reasons for that. Declaring war was once the prerogative of kings. The Founders tried to avoid the danger of a single person dragging the entire nation into an ill-considered war. Also, it’s been argued that lodging the war power in Congress forces a President to get broad consensus for military action, making it more likely the nation will stick with a war instead of bailing out when the body bags start coming back to Dover.
Congress hasn’t declared war since the day after Pearl Harbor in 1941. So how did U.S. troops end up in the Middle East and Africa? And how was it constitutional to fight wars in Korea, Vietnam, and, more recently, against ISIS in Syria?
The U.S. went to war in Korea under the auspices of the UN. The Tonkin Gulf resolution gave LBJ a blank check, some say, in Vietnam. Authorizations for Use of Military Force from Congress—AUMFs—are the justifications for U.S. military actions in Afghanistan and Iraq, and against Al Qaeda and ISIS everywhere. The problem is these authorizations were passed 15 years ago and are becoming more and more attenuated in time, place, and rationale. We fight Islamic State in Niger as a successor to Al Qaeda even though, some say, Al Qaeda has repudiated ISIS. U.S. troops are in 19 countries under these Authorizations, but Congress has not pushed back.
Presidents used to take the Congressional war power seriously. For the first 160 years of the nation’s history, no President claimed the power to wage war without authority from Congress. In 1954, President Eisenhower declined to unilaterally order an air strike in Indochina, saying such a move would be “completely unconstitutional.” President Obama, on the other hand, sent the military into war in Somalia, Yemen, Libya, and Pakistan without congressional declarations of war.
Whose fault is this? Who let the Congressional Article 1, Section 8 war power become a dead letter? The situation fits the pattern, correctly identified by the Tea Party movement, of a Congress that has fallen down on the job and is not exercising its responsibility. But it’s also true that We the People have let them get away with it.
In 1973, Congress attempted to put some legal structure around this subject with the War Powers Resolution. The Resolution lets the President commit troops anywhere on the globe for 60 days without a Congressional AUMF. But as has been pointed out, it’s a little hard to unscramble the egg after 60 days. Also, it’s been argued that the President does not need any Congressional approval at all for military actions that are “small” or defensive actions in response to another country’s first strike or imminent attack.But what is “imminent” and when is a conflict too small to bother Congress with it? President Obama went to war in Libya, in a campaign that involved weeks of bombing. That case has been argued both ways, some saying it was too small to require Congressional approval and others disagreeing. How about a defensive action that drags on for 6 months, or 6 years? Where do you draw the line in these cases? Who resolves these ambiguities once you depart from the Constitution which clearly states only Congress shall declare war?
But let me paint a scenario for you. A President unilaterally decides to take out North Korea’s nukes, justifying it as a small action perfectly legal because the Korean War technically never ended—there was an armistice, not a peace treaty. North Korea responds by shelling Seoul. A million people die. The war drags on. The President shifts the rationale to regime change. A soldier who does not want to be deployed sues in federal court for a national injunction against the war, citing things the President said on the campaign trail. Congress joins the suit, calling the war an executive overreach in violation of Article 1, but does not use its power of the purse to cut off the war is it did in Vietnam. A Supreme Court justice makes a speech calling it a war but not a war. Now what?
There are people in this audience who like President Trump, but imagine these powers in the hands of your worst political enemy. What was crystal clear under the Constitution is now unclear. The law on this subject is in disarray. A constitutional crisis is foreseeable, a crisis that would be the wages of failing to adhere to the Constitution—the Founders’ design—more strictly.