The Corner

National Security & Defense

Can Congress Get Its War Powers Back?

The U.S. Capital building (Wikimedia Commons)

If there’s a silver lining in the dark clouds of negative polarization, it’s that there are finally smart folks on both sides of the partisan divide who are thinking hard about correcting a fundamental problem in contemporary American politics. Congress is too weak. The multi-generation, bipartisan rise of the imperial presidency alienates Americans from their government (the most consequential vote they cast is for POTUS, and they’re but one voice out of 130 million), impairs the constitutional order, and increases domestic political conflict by elevating the stakes of every presidential contest. While it’s not exactly true that every presidential race is the “most important of our lifetimes,” it is true that we vote every four years for an increasingly powerful chief executive.

Yesterday, my friends over at Protect Democracy, a nonpartisan legal group that I’ve written about before, put out an ambitious document that it calls a Roadmap for Renewal, a series of proposals designed to strengthen Congress and limit presidential authority. The roadmap is far too complex and detailed to evaluate in a single post — and I don’t agree with every proposal — but I would like to focus on three elements that I think are both attainable and vitally important, each related to the president’s war powers: “Revising the War Powers Act” to limit the president’s authority to unilaterally wage war, legislatively “clarifying which military conflicts against which adversaries and in which theatres” Congress has authorized the use of military force, and “requiring the Executive Branch to disclose to Congress and the public its legal basis under domestic and international law for uses of military force.”

If I had to pinpoint the single most dangerous element of executive overreach in the age of the imperial presidency, it’s the decisive assertion of executive power over the decision to wage war. Thanks in part to Protect Democracy’s efforts, the Trump administration recently released its legal memorandum justifying military strikes against the Assad regime — an act of war by any reasonable measure. It’s a disturbing document, one that uses each previous improper use of presidential power to justify the next act of overreach. It also relies on dangerous presumptions that unilateral military actions (again, actions that are acts of war under international law) will be limited. The argument is that some “planned military engagements” represent “wars,” and some do not.

Yet history teaches time and again that “limited” actions can quickly lead to escalations that spiral out of control. And even when they don’t spiral out of control, they can carry with them serious and divisive consequences. It is all too easy to imagine a “limited” strike that touches off a larger confrontation — plunging America into a costly and deadly conflict without meaningful public debate. It becomes especially easy to imagine this outcome when the foreseeable future strikes might take place again in Syria (in close proximity to Russian forces) or in North Korea (where any strike risks total war on the peninsula.) Is a polarized America ready to stumble into major conflict on the basis of a president’s personal decision?

Moreover, we are now engaged in combat operations across Africa and Asia on the basis of two military authorizations that are both more than 15 years old. It’s past time to clarify our military commitments and better define our foes. For example, America is now pondering a long-term engagement in Syria (and I strongly support the American presence in northern Syria), but that’s far afield of both the post-9/11 and Iraq War authorizations. Let’s ask the president make the case for his strategic vision to the American people. So far, the conversation is happening largely behind closed doors, and Congress is relegated to the role of bystander — ready to write checks without exercising any meaningful oversight.

Finally, it’s worth noting that presidential war powers have been increasing at the same time that public trust in government has been decreasing. That’s a formula for increased political discord. While no branch of government is covering itself in glory, at the very least requiring congressional military authorizations in all but the most emergency of circumstances will grant the public a greater voice in the most consequential decisions any government can make. We do need a roadmap for the renewal of congressional authority and purpose, and the first stop on that road can and should be the reassertion of Congress’s sole authority to declare war.


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