Politics & Policy

Congress Must Exercise Treaty and War Powers

U.S. Marines with Third Battalion, Eighth Marine Regiment, Lima Company, train in Pohang, South Korea, in March 2017. (Corporal Anthony Morales/USMC)
National-security decisions increasingly fall to the executive. The legislature needs to fulfill its constitutional role.

President Trump’s meeting with North Korean head of state Kim Jong-un and the tentative agreement they recently announced caused a stir throughout the global halls of power — including the United States Senate. Leaders from both parties expressed skepticism about any nuclear deal negotiated between the two leaders and declared their intention to review and vote on whatever agreement is finalized. Others rushed to the Senate floor to file amendments to the annual defense bill in order to restrict the president’s authority to remove American troops from the Korean Peninsula.

The Senate’s renewed interest in foreign policy and military activities is not only necessary but refreshing, given its recent history of affording the executive branch broad latitude on such issues. However, the inconsistencies in the way Congress chooses to carry out its constitutionally mandated responsibilities — and the reasons members of Congress decide to do so — are troublesome.

The relationship between the legislative and executive branches over their shared powers on issues of war and agreements with foreign nations has been difficult since the ink dried on the Constitution. The Constitution makes the president the commander-in-chief of the armed forces, while giving Congress the authority to declare war. Article II gives the executive the power to make treaties with foreign nations, provided that the agreements receive consent from two-thirds of the Senate.

While complicated, this conflict was intentionally designed in the best interests of our democracy. Matters of war and peace are perhaps the most difficult and risky endeavors for a nation. The framers of the Constitution understood the need for expediency, secrecy, and clarity of command from the executive branch, while designing Congress to be a bulwark against presidential overreach and establishing consistency in governance as presidential terms cycled.

James Wilson, a member of the Continental Congress from Pennsylvania and drafter of the Constitution, stated: “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

Regarding treaties, Alexander Hamilton wrote in Federalist No. 75: “The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.”

These statements, and many others made at that time, show that this shared-power structure was the subject of considerable deliberation and calculation, and that the legislative branch was expected to play a significant role in our foreign affairs.

Yet Congress has largely relinquished its war and treaty powers to the executive branch. Since 1941, Congress has not exercised its authority to declare war, instead relying on broad authorizations for the use of military force (AUMFs) or, more frequently, silently following the executive’s decisions with only superficial oversight.

Some of this is caused by congressional careerism and an aversion to taking a stand on difficult issues. Voting to authorize military force or declare war can be politically damaging, as many members of Congress and presidential candidates found out in 2006 and 2008 over Iraq. Politicians feel safer giving latitude to the executive branch to act, then sitting back and criticizing the intervention if it becomes unpopular.

At other times, congressional leaders become concerned that executive actions they support will be jeopardized if Congress actually takes action. President Obama’s supporters strongly opposed bringing agreements such as the Joint Comprehensive Plan of Action with Iran and the Paris climate agreement before a hostile Senate that may have rejected them. Similarly, hawkish legislators have largely resisted necessary efforts to reform the 2001 global terrorism AUMF because it could weaken the programs and authorities already in use.

When it comes to North Korean denuclearization, members of Congress from both sides of the aisle do not trust Kim Jong-un and President Trump to create a successful agreement. Others believe the United States should remove Kim from power altogether. Both are valid reasons for members to have concerns about the recent thaw in relations, but these are not the justifications Congress should cite for carrying out its duties.

Whether Republican or Democratic, popular or unpopular, our republic operates as intended when Congress exercises its constitutional powers on wars and treaties. The inherent political conflict and risks associated in doing so are an indispensable part of our system of representative government.

Robert Moore is a public policy advisor at Defense Priorities. He most recently served as the lead staffer for Senator Mike Lee on the Senate Armed Services Committee.


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