The further we are from an actual threat, the greater is the president’s political need for congressional support.
The further we are from an actual threat, the greater is the president’s political need for congressional support.
O n Monday, President Trump sent to Congress a notice that he’d ordered an aerial invasion of Iran. He said the notice was “consistent with” the War Powers Act (WPA).
Why the sneer quotes? To underscore that “consistent with” is not the same as “in compliance with.” The former implies a discretionary accommodation, a courtesy. An expression of compliance, by contrast, would concede a legal duty. This president never concedes that his powers have strings attached. Indeed, this president would not even tip his red cap to the familiar twaddle about our “three peer branches” of government; a nod to the verity that our constitutional framework makes the people’s representatives, not the executive, primus inter pares would be out of the question.
If President Trump thinks at all about Article I’s commitment to Congress of the power to authorize warfare, it is as a trivial anachronism. And why would it be otherwise? After all, that’s how today’s Congress sees it, too.
In 1973, a very different, engaged Congress enacted the WPA over President Nixon’s veto. The Constitution makes such an override very tough to do — in theory, tougher than impeachment and removal, as it requires two-thirds’ supermajorities in each chamber, not just the Senate. The WPA surmounted this hurdle because of the Vietnam War’s legacy: executive branch secrecy, deception, and troop-level expansion — evading oversight, covering up failure, and bereft throughout of clear, attainable objectives.
After President Eisenhower sent a few hundred noncombat advisers to assist South Vietnam, in furtherance of the government’s Cold War containment strategy, the Democratic administrations of Presidents Kennedy and Johnson transformed the conflict into America’s war. Between unauthorized deployments and a massive increase of U.S. forces based on the pretextual Tonkin Gulf Resolution, there were over a half-million American troops on Far East Asian battlefields by the end of Johnson’s term.
Nixon covertly spread the war into Cambodia. When discovered, this intensified domestic anti-war activism (much of it forcible) and student protests, leading to the deployment of the Ohio National Guard after an ROTC building was burned down at Kent State University. The next day, May 4, 1970, four Kent State students were killed and nine others wounded when the guardsmen opened fire during a violent, chaotic protest.
On the matter of reasserting Congress’s war powers, then, the daunting math of veto override melted in the face of over 58,000 combat deaths and more than 150,000 wounded. The political support needed to override the veto swelled from the ground up — the same popular ground that, just months before, had reelected Nixon in a historic landslide.
A cautionary coda: While unilateral executive war-making had been disastrous, the catastrophe was not complete until Saigon fell in 1975. The post-Watergate Congress, dominated by Democrats, unilaterally turned its back on South Vietnam. The image — the helter-skelter evacuation, the humiliation and betrayal — haunts us to this day: Remember the rueful invocations of Saigon during President Biden’s egregious 2021 withdrawal from Afghanistan.
On matters of war and peace, the matters most vital to the body politic, our constitutional structure is designed to work most effectively when the political branches collaborate. Working at cross-purposes ends in tears.
On this point, while commending his piece on the Iran War in our pages this week, I must respectfully disagree with my friend John Yoo, the former Bush Justice Department official — during the post 9/11 crucible — and a brilliant scholar of executive power.
As Professor Yoo points out, quoting Hamilton (in Federalist No. 70), the Framers vested in the president the “duty of ‘protection of the community against foreign attacks” (emphasis added). That, however, is not an invitation to make war without Congress’s approval in the absence of a foreign attack — or at least the realistic threat of one — against vital American interests. And yes, I agree with Yoo’s assessment (again drawing on Hamilton, this time in Federalist No. 74) that the Framers believed “the direction of war demands ‘energy, decision, activity, secrecy, and dispatch’ — qualities the executive possesses and Congress, by its size and deliberative structure, does not” (emphasis added). But the direction of war refers to how it is executed, not how it is authorized in the first place.
On this distinction, Hamilton should be read in conjunction with Madison, and with the text and structure of the Constitution, which explicitly gives the ultimate war power to Congress, not the president. On this point, Reason’s Damon Root is (to my mind) persuasive in stressing a letter from Madison to Jefferson in the first years of constitutional governance:
The constitution supposes, what the History of all [Governments] demonstrates, that the [Executive] is the branch of power most interested in war, [and] most prone to it. It has accordingly with studied care, vested the question of war in the [Legislature].
Yoo is certainly right that the Constitution arms Congress with dispositive powers to end unilateral presidential war-making, the power of the purse paramount among them. So yes, Congress could have stopped President Trump on Iran at several junctures, and could do it still.
Yet, this conflates constitutional authority with the Constitution’s remedy for flouting that authority. If the president were to decree a tax — say, a tariff — we would not reason that the taxing power must legitimately be his because, after all, (a) the Constitution makes him chief executive responsible for collecting taxes, and (b) if Congress disapproves it can slash the tax-enforcement budget. No, we’d say the president usurped congressional authority. The fact that the Constitution, as it must, arms Congress with the means to reverse the transgression does not make it any less a transgression.
The Constitution, in conscious departure from the British monarchy, endowed the representatives of the people whose lives would be at stake with the power to authorize warfare. The default role of the president is to wage the war as the commander in chief, not commence it.
To be clear, I could not agree more with Professor Yoo that the president needs no statutory authority to take any necessary military action when there is an actual military threat against the homeland or vital American interests. Moreover, claims that such a threat must be imminent before the president can legitimately respond with force are specious.
In the absence of such a threat, though, the Constitution requires congressional authorization. And I’d add this maxim because war-making carries great risk and is apt to fail calamitously in the absence of public support: The further we are from an actual threat, the greater is the president’s political need for congressional support. A legislative authorization of military force is a prudential requirement regardless of one’s view about whether it is a legal mandate.
Regarding Iran — just as in connection with what the administration refers to as its “law enforcement operation” in Venezuela, as well as its lawless enforcement operations against “narcoterrorists” in the Caribbean — the president does not acknowledge Congress’s Article I power to authorize warfare.
It’s interesting because, if he were so inclined, such reliance could add legitimacy to the aerial invasion and whatever combat operations follow from it. The post-9/11 Authorization for the Use of Military Force (September 18, 2001). Yes, that was a quarter-century ago, but the AUMF has never been repealed; as is its habit, the modern Congress has occasionally groused but never gotten around to, you know, legislating a retraction, or at least an amendment to conform the AUMF to the still evolving threat environment.
There is no statute of limitations on the AUMF, and no president since its enactment has hesitated to rely on it in striking tenuously related targets (e.g., jihadist organizations that did not formally exist when al-Qaeda killed nearly 3,000 Americans in 2001). By comparison, applying the AUMF to Iran would not be a stretch: Its Hezbollah militia provided logistical support to the suicide hijackers before the attack; and the Shiite regime allowed senior al-Qaeda figures to escape into Iran after the U.S. invaded their strongholds in Afghanistan — harboring several for years, including both Osama bin Laden’s son and Abu Musab al Zarqawi — the formative leader of al-Qaeda in Iraq that eventually became ISIS.
In his notice, however, Trump does not cite the 2001 AUMF or any of the many congressional enactments over the past half century that dealt, in one way or another, with the war against the United States that the Shiite jihadist regime in Tehran has been waging since its 1979 inception. To do so would imply that someone besides him has a say in the matter.
“I directed this military action,” the president says, in light of “my responsibility” for Americans and U.S. interests. “I acted,” he elaborates, “pursuant to my constitutional authority as Commander in Chief and Chief Executive to conduct United States foreign relations.”
If that is the standard, then there is no standard.