On Thursday, the Senate voted 56-41 to pass S.J. Res. 54, the Yemen War Powers Resolution, which directs the president to withdraw support for the Saudi coalition in its war on Yemen. This is the first time that Congress has used the War Powers Resolution in this way, and is a welcome development for constitutionalists who wish to reverse the imperial presidency, which is an affront to the Founding — and in many cases blatantly unconstitutional.
As David French noted on the Corner this summer, “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.”
While war powers are far from the only area in which Congress has abdicated its constitutional role, they are the most dangerous manifestation of executive overreach. James Madison believed the prohibition on executive warmaking was the most crucial element of the American constitutional order. He wrote, in 1793, “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”
Given this context, it is particularly jarring to see a Wall Street Journal editorial call the resolution “an unconstitutional intrusion on a President’s power as Commander in Chief.”
As I wrote earlier this year, “It is the executive branch that directs the physical force of the military, spends the money that has been allocated to it, and provides “honors and emoluments of office” during the course of war. The sheer scope of all this underlines why the executive branch is not allowed to declare war — for war allows it to behave like a patron on a grand scale.” The president has considerable discretion in how a war is conducted, but only after congressional authorization and funding.
The constitution does not invest the president with the power that the Journal editorial assigns it. (It’s only the former that’s binding.) The Obama administration joined Saudi Arabia’s war on Yemen without authorization — in other words, illegally, as was its habit in several foreign conflicts. The Trump administration has continued Obama’s war, and in fact deepened U.S. entanglement, but it has not received congressional authorization either.
Obama turned Congress’s war power into a post-facto rubber stamp, requesting authorization for ongoing wars in his State of the Union Address, Trump has eroded it even further. It is not surprising that self-interested politicians continue to perpetuate the imperial presidency, even though it is unconstitutional, but it is particularly distressing to see a major organ of conservative opinion endorse Woodrow Wilson’s expansive, Progressive view of the presidency.