President Joe Biden’s decision last month to launch an airstrike against Shia militia targets in eastern Syria, purportedly in retaliation for rocket attacks against U.S. troops in Iraq, has resurrected the debate about war powers. Concerned that the strike is one more instance of executive overreach on matters of war, some lawmakers are attempting to build momentum for a renewed push on repealing and replacing overly expansive authorizations for the use of military force (AUMF). The Biden administration is responding to the effort with some sympathy.
Proponents of executive power are, predictably, sounding the alarm on reform. On March 12, John Yoo and Robert Delahunty made the case in these pages for why Biden’s cooperation on war-powers reform would be a mistake — and, just as important in their view, for why going down this road would “reset” the constitutional order.
The problem with this analysis, however, is that it circumvents the very principles America’s founding generation put in place to restrain presidents from granting king-like powers to their office. What the authors are essentially arguing for is turning the presidency into a quasi-monarchy, one in which the decision to take the U.S. into a state of war belongs entirely to a single individual. Not only would this be a direct violation of what the Constitution dictates, but it would also relegate the legislature, an independent and coequal branch of government, into a debating society virtually powerless to stop a conflict before it even starts.
The Framers of the U.S. Constitution were smart men. They had a keen sense of history and understood that unchecked systems of government were susceptible to abusing their power and rushing into potentially catastrophic mistakes. Only through a system of checks and balances, where one branch of government can rein in the excesses of the others, would America insulate itself from these same kinds of problems.
This was no more vital than on the decision to take the country to war, the most consequential decision any nation can make. It was one reason why framer James Madison, an avid opponent of executive war-making, was so intent on ensuring that Congress, not the president, was the sole determiner of whether or not war was authorized. War, put simply, was so consequential and potentially existential for the nation that the process of entering into one should be deliberate and difficult. Madison summed up his thinking in a letter to Thomas Jefferson more than a decade after the Constitutional Convention: “The constitution supposes, what the History of all Govts. demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.”
Even so, the architects of the Constitution also recognized that there could very well be times when defending the nation in an emergency was too integral to wait on Congress to convene. While Congress possesses the sole authority to declare war, the Framers chose the word “declare” for an explicit reason: In the case of foreign invasion against the U.S., “declare” would provide the president with enough flexibility to take action against an “imminent attack.”
Unfortunately, the “imminent-attack” standard has been grossly misinterpreted in the centuries since. Successive presidents since the end of World War II have slowly but surely chipped away at the carve-out that was designed to be limited to national emergencies. The interpretation of what constitutes an imminent threat is expanding to such an extent that you could be forgiven for thinking that the Constitution’s declare-war clause no longer applied. The imminent-threat standard has snowballed into the national-interest standard, whereby presidents and their legal advisers can supposedly justify any unilateral use of force overseas just by claiming that it is in the U.S. national-security interest to do so. Viewed in this way, Article II, Section 2 is a kind of ace in the sleeve for the executive — turning Congress into an essentially irrelevant player in the entire war-making process. Harvard Law School professor Jack Goldsmith, who served as assistant attorney general in the Office of Legal Counsel during the Bush administration, captured this dangerous trend in January 2020, right after the Trump administration cited its Article II power to kill Iranian General Qasem Soleimani: “Our country has — through presidential aggrandizement accompanied by congressional authorization, delegation, and acquiescence — given one person, the president, a sprawling military and enormous discretion to use it in ways that can easily lead to a massive war.”
Yoo and Delahunty apparently don’t have a problem with this system. Neither did the presidents of yesterday. John F. Kennedy’s embargo of Cuba, Harry Truman’s introduction of U.S. forces in Korea, George H.W. Bush’s invasion of Panama, and Bill Clinton’s military intervention in the Balkans were all undertaken without any congressional authorization whatsoever. One of the most blatant misinterpretations of a president’s Article II authority, however, was the 2011 U.S./NATO intervention in Libya, in which the Obama administration argued it didn’t need approval from Congress because the scope, scale, and duration of the military operation was limited. To Yoo and Delahunty, each and every one of these case studies is precedent enough for future commanders in chief to continue going over the heads of Congress. In reality, they run the 1973 War Powers Resolution (passed over President Richard Nixon’s veto) through a paper shredder and make a mockery of the Framers’ intent on how the U.S. is to decide when and where to go to war.
Yoo and Delahunty do acknowledge that Congress has options if it’s truly interested in asserting itself. For example, lawmakers could use their appropriations power to defund an ongoing military operation. Articles of impeachment are also on the table.
Yet all of these recommendations don’t obviate the blaring fact that, on the most fundamental question of war and peace, the institution of the presidency continues the terrible habit of all but elevating its own legal opinions above the Constitution. What’s worse, the legislative branch in general has spent decades sitting on its hands and allowing the executive to grab ever more power.
The law is clear: Unless the U.S. is under an imminent attack, the president is constitutionally responsible for approaching Congress for the authority necessary to introduce the U.S. military into hostilities. Anything beyond this is an artificial expansion of the executive branch’s prerogatives and a sign of disrespect to the Framers.