Reckless president, impotent Congress
Not the combination the framers envisioned.
Article I of the Constitution gives Congress the power to declare war. Article II establishes the president as commander-in-chief of the country’s military forces.
There have been a lot of learned men and women engage in a lot of chin-stroking about a supposedly gray area between these two roles and authorities. In reality, the framers intended a clear demarcation: Congress decides whether to fight. The president decides how to fight.
Alexander Hamilton highlighted the demarcation in Federalist No.69 by contrasting the authority granted to the president to that exercised by the king of Great Britain:
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral …; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies – all which, by the Constitution under consideration, would appertain to the legislature.
First generals and admirals don’t make the policy decision whether to engage in combat with another country.
The founders intended for the United States to be a peaceful trading nation. They wanted to insulate the United States from foreign influence and to avoid getting dragged into Europe’s internal battles and disputes. George Washington’s Farewell Address brilliantly and eloquently expresses this intent and resolution.
The Constitution sets up institutional barriers to protect the intent and resolution. Treaties with other countries, which legally bind the United States, require approval from two-thirds of the Senate. And engaging in combat requires majority approval from both chambers of Congress. The use of military force against another country was supposed to require a broad national consensus, reflected by a vote in Congress.
If there is a direct attack on the United States, no one has ever questioned the authority of the president, as commander-in-chief, to respond. The only gray area, in terms of constitutional structure and intent, involves an imminent threat of a direct attack. How clear and how imminent must a threat be to trigger a response by the commander-in-chief absent congressional authorization?
What President Trump has ordered in Iran is light years away from this diminutive gray area. Iran posed no imminent threat of a direct attack on the United States. Yet, without an authorizing vote from Congress, we are extensively bombing the country and conspiring to assassinate its leader and many of its senior officials.
In geopolitical terms, Trump isn’t actually acting to advance a significant strategic interest of the United States. Instead, he is acting to support a very significant strategic interest of Israel.
Iran was a mortal threat to Israel. It expressly advocated the eradication of Israel and was acquiring the means of effectuating it. Israel is better off the more degraded Iran’s hostile capabilities become, irrespective of knock-on effects in Iran and the broader region.
That’s not clear for the United States. I’ve long advocated for the United States to remove itself from the snakepit of Middle East geopolitics. But to the extent we don’t, there are an infinite number of ways in which the knock-on effects of the Iranian war will leave the United States worse off, and only one in which we are clearly better off: if Iran somehow transitions to stable, democratic governance wanting good relations with its neighbors. When Trump decided to go to war, that was hardly the most plausible and likely outcome.
The rise in the 20th Century of expansionist fascism and communism, and the vast devastation of other industrialized democracies in World War II, made a return of the United States to the peaceful trading nation the founders envisioned strategically ill-advised. There were global threats only the United States was strong enough to contain. After Pearl Harbor, there was a national political consensus not to let them fester.
The War Powers Resolution, adopted in the 1970s, was an attempt to balance the Constitution’s grant of war-declaring authority to Congress with the larger security role the country has assumed in the world. No one else puts it this way. But, as a practical matter, the War Powers Resolution operates as a pre-approval of combat initiated by the president for a period of 60 days. After that, Congress either has to approve it or the president has to wind it down. And, during the 60-day window, Congress can vote to halt the fighting.
Back in the 1980s, the U.S. Supreme Court held that any binding legal action by Congress has to be presented to the president and be subject to his veto. It requires a two-thirds vote to override a veto.
Consider the perversion of the constitutional structure. The framers intended for it to require a simple majority of Congress to start a war. Today, it requires a two-thirds majority to stop one.
Despite the pre-approval implicit in the War Powers Resolution, most modern presidents have still sought congressional authorization before engaging in major military campaigns. There were congressional authorizations to use force in both Iraq wars and in the war to oust al-Qaida from Afghanistan.
Some seek to manufacture some constitutional distinction between a declaration of war, which Congress hasn’t passed since World War II, and an authorization of force. Constitutionally, that’s a distinction without a difference. An authorization of force resolution fulfills the constitutional role of Congress deciding whether to fight.
The U.S. combat mission in Iran is major. Yet, Trump made no attempt to obtain congressional approval. It’s safe to assume that he won’t feel bound by the 60-day limit of the War Powers Resolution, or any other provision of that law. As far as Trump is concerned, Congress’s war powers don’t exist.
As usual with Trump’s excesses, there is a Democratic antecedent. Barack Obama’s bombing campaign on Libya extended well beyond the 60-day limit. Obama claimed that the campaign didn’t qualify as engaging in “hostilities” under the act. That was a brazenly false assertion.
The War Powers Act doesn’t define “hostilities”, but it does offer a partial operational description. It expressly covers “any case in which United States Armed Forces are introduced …into the territory, airspace, or waters of a foreign nation, while equipped for combat ….” That inarguably describes Obama’s Libya bombing campaign. And Trump’s Iranian bombing campaign.
With the Libyan bombing campaign, Republicans complained about Obama not seeking congressional authorization and sought to use the War Powers Resolution against it. Democrats largely defended it. With Trump’s Iranian campaign, the roles are reversed.
I don’t expect the Iranian war to turn out well. Not for the people of Iran, not for the region, and not for the United States. I hope that it turns out well for the Iranian people and the region.
But even if it does, that doesn’t mean that it will turn out well for the United States. Our interests in the Middle East might be more secure and stable. But, domestically, we will still have two major parties who only care about constitutional norms when out of power. That’s a greater long-term threat than anything that happens in the Middle East.
Reach Robb at robtrobb@gmail.com.