While Congress votes this week on President Obama’s modest request for authority to train and equip Syrian rebels to battle ISIS on their territory, the legal debate most occupying the opinion columns remains more about what the President has not yet sought: broad authority to deploy American military force to seek out and destroy the terrorist group ourselves.
The Constitution’s framers would have found the question whether the president needs congressional authorization for such an operation straightforward. Congress’s involvement is required not only because the Constitution expressly commands that war powers be divided between the political branches, but also because the war-weary framers shared a conviction woven throughout the document: taking the country to war should be a hard thing to do.
The past 60 years of American practice has obscured this formal framework, supplanting arguments from constitutional text and history with arguments about the more recent reality of presidential habit and congressional acquiescence. Presidents have been using force on their own for decades already without Congress or the courts saying no; it must be constitutional by now.
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Whatever one makes of such arguments as a matter of law, the practical effect of these developments is clear: taking the country to war has never been so easy. How did it come to this?
The Constitution’s framers gave Congress the power to “declare war,” along with the powers to provide for common defense, raise and support an army and navy, define and punish offenses against the law of nations, make rules concerning captures, and more. The president, in turn, was named commander in chief, a label understood at the time as giving him authority over the tactical direction of forces once authorized, but not more than this. Not that congressional action was always required. That Congress was given the power to “declare” war and not “make” war, as an earlier draft had suggested, was for a singular purpose—so that the president would have the power at least to “repel sudden attacks.” Acting in our defense, Jefferson could deploy frigates to protect American ships against Barbary attacks, Lincoln could engage Confederate troops attacking Fort Sumter, and Obama could draw on air power to protect U.S. consulates and personnel against ISIS advancements in Iraq—all without prior congressional approval.
The framers reasons for requiring congressional assent for engagements beyond these instances reflected their belief that war was “the greatest of national calamities” and should therefore require the agreement of more—not fewer—members of government. More, it was motivated by a commitment to political accountability in a democracy. Rejecting the British “new model” army of Oliver Cromwell and its associated tradition of tyranny and oppression, the framers thought our armed forces should be manned by the citizen-soldier, one incapable of being turned to oppress The People of which he was part. The People themselves would be called up to fight. The Constitution would require Congress publicly to authorize military expenditures “in the face of their constituents” every two years. And only Congress could vote to take the country into war. War would and should be impossible in a free society without The People and their representatives’ consent.
Fast forward two centuries, and all these checks have long since ceased to function. The citizen-soldier gave way to national conscription, which in turn gave way to today’s all-volunteer force. The requirement that Congress publicly authorize all military funding has been weakened by today’s vast reliance on private contractors, making it easier for legislators to shield huge swaths of military-related spending from public view by lodging them in less visible appropriations for other departments. Most of all, the framers’ clarity about the role of Congress has been obscured by an avalanche of contrary presidential practice. From Korea and Vietnam to Lebanon and Panama, to Somalia, Bosnia, and most recently Libya and Iraq—presidents have launched military operations of widely varying scope, many lacking any suggestion of acting in our own defense, all without getting Congress’s authorization first.
To be sure, presidents have offered a set of legal reasons why such operations are constitutional. Presidential practice, coupled with congressional and judicial acquiescence, should be understood to inform and reshape constitutional meaning. The Constitution was written in broad terms precisely to make room for its meaning to evolve over time. Modern threats make it necessary at times to act without the participation of Congress. Congress itself ironically recognized as much in its effort to rein in presidential use of force after Vietnam. The 1973 War Powers Resolution—requiring the president to report to Congress within 48 hours of introducing U.S. forces into hostilities, and requiring force to end within 60 days absent congressional authorization—implicitly recognizes the president’s authority to use force before Congress acts. More, as President Obama’s Justice Department argued in seeking to justify its 2011 use of force in Libya without congressional authority, the president recognizes his own limits—to be lawful, his unilateral use of force must fall short of “war” within the meaning of the “declare war” clause itself.
But therein lies the problem. Especially without any of the other accountability mechanisms the framers once imagined, neither the president nor Congress has succeeded in policing the limits they themselves have set. In Iraq and Syria, unlike in Libya, there is no pretense that this is anything less than war in the constitutional sense. We will be leading the way, we will be firing the weapons, and we will be, in the president’s own contemplation, engaged for some time. As for not having “boots on the ground,” assurances on that matter seem belied by the presence already of more than a thousand U.S. military and other personnel in country. And by the announced promise of more to come.
Congress is no less culpable. It has not bestirred itself since 2001 to extend its authorization for the president to use military force beyond those groups actually responsible for the attacks of September 11, 2001—which today’s ISIS was not. Neither has it been historically inclined to use the powerful check still in its arsenal: blocking the expenditure of funds for wars with which it disagrees.
For all their wisdom, the framers made one critical mistake in counting on the separation of powers to check the country’s march to war. Madison assumed individuals in power would be ambitious, would want to assert their views, and would want to use their power to affect change. Ambition in Congress would counteract ambition in the Executive, and the daily struggle would help keep all the branches in check. But ours has become a Congress lacking all ambition, preferring to hide in the shadows of presidents whose own political courage sometimes fails. Together, they have helped make it ever more possible for the American people to neither feel nor bear the costs of war.
