For a brief moment, let’s leave aside the question of whether or not the United States should pursue action in Syria (we should). Instead, let’s look take this opportunity to consider how it is that the United States goes to war.
From civics class, you might remember that the Constitution gives the power to declare war to the Congress, but makes the President the ‘Commander-in-Chief’ of the armed forces. In theory, this means that in addition to what are referred to as ‘inherent powers’, such as the power to respond to an immediate threat without Congressional approval, the President also has the discretion to move troops and make preparations for war within the confines of applicable law. But he must get the Congress to approve before committing the country to a large scale enterprise.
The idea is that while it would be imprudent to hamper the agility of the armed forces in day to day or emergency circumstances, only the Congress may commit the country to war.
On paper, it ought to work. Alas, reality has been a bit disappointing. Rather than operating within the highly circumscribed space that most of us imagine from our civics class reading of the Constitution, the President has been able to steadily gain flexibility, to the point where his actions in this area are almost entirely unhampered by constitutional checks and balances.
To see why, it helps to retrace some of the historical developments along the way.
The tension between the President’s ability to make war and the Congress’ ability to declare war was historically made more manageable by the fact that making war was a big deal. Having the legal authority to commit troops to a fight meant little when there was only a small standing army and no money with which to raise new troops. Though it’s true that the United States has always seen limited military engagements – think the Whiskey Rebellion Granada – actions like the Mexican War or the Spanish American War required special appropriations. If the President’s ability to dispatch troops without Congress was a subject of dispute, his ability to spend money without their approval was not. As is so often the case, Congress’ most significant power in war making was the power of the purse.
Over the past hundred years, however, the practical effect of that power has eroded. The United States now keeps a large standing army as well as a sizable military budget. In addition, American forces are better trained and better equipped. Relative to our strength, our enemies are much weaker. In other words, if the President wants to engage in a military action, he can now do that without asking Congress for more money. If he’s willing to pay the political price and forgo calling up the National Guard, it is unclear that there is anything to stop him from going to war.
As a response to this shift in influence and control over military policy, and in the aftermath of Vietnam, Congress shifted its efforts to constrain the President’s use of force from a prior-consent model to a prior-proscription model. Recognizing that the White House no longer saw Congressional approval as a requirement for military action, the Congress passed the War Powers Resolution in 1973. The bill specified the following conditions for the use of force:
(i) When the President introduces troops into hostilities (or substantively increases the number of troops in an area of hostilities), he must notify Congress within 48 hours.
(ii) If after 60 days, the Congress has not approved the use of force, then the President will have 30 days to withdraw the troops.
The bill was vetoed by Richard Nixon and that veto was in turn overridden by both houses of Congress; the bill became law on November 7, 1973, when the Senate voted to override. Since then, the White House and the Congress have been involved in a legal back-and-forth over the constitutionality of the act. To keep things brief, the White House has maintained that the bill is unconstitutional; when it does comply with its provisions, it does so somewhat passive aggressively – saying that it is doing so in a way that is “consistent with” the act, rather than “pursuant to” it. Not surprisingly, the Congress has been unamused by this line, but also entirely ineffective in pushing back. The Courts, by and large, have stayed out of it.
This farce serves the purposes of everyone involved: the White House doesn’t have to point out how unconstrained it is, and neither the Congress nor the Courts have to demonstrate how ineffective they would be in reining in the President’s war powers.
In some instances, the White House has simply ignored the War Powers Resolution. For example, during the 1999 bombing campaign in Kosovo, President Clinton began hostilities without a Congressional vote. It then continued bombing for two weeks after the 60-day deadline had passed. Similarly, in Libya, the Obama administration bombed for a few months without Congressional approval. In both instances, the White House made problematic (though somewhat plausible) legal arguments as to why the War Powers Resolution did not apply. In both cases, members of Congress voiced skepticism. But again, the courts have provided little clarity.
(In the Balkans, the White House maintained that an appropriations bill provided implicit approval for the bombing campaign, despite the fact that the War Powers Resolution explicitly states that funding bills may not be construed in this way. In Libya, the President instead argued that the bombing campaign did not constitute ‘hostilities’. That was probably too clever by half if you were in the range of an American bomb.)
Another example bears mentioning. In the 1980s, all the world knew President Reagan wanted to get involved in the conflicts that were wreaking havoc in Central America. So the Congress passed a series of statutes (the Boland Amendments) making any funding of the Contras illegal. As you might already know, the White House gave them money anyway and, because they couldn’t get the money from the Congress, they instead got it from selling weapons to Iran. Yes, that Iran.
So, how bad are things? The optimistic argument is that we still live in a democracy. That means that leaders still depend on popular support for their agendas, even if that support doesn’t extend to everything they do. As a result, elected officials are loosely constrained in what they can get away with by the political price they have to pay for doing it. In the most extreme circumstances, the Congress could always just remove the President from office. As far as silver linings go, I don’t know how reassuring you find this paragraph.
The less optimistic argument is that in the absence of explicit and uncontroversial legal controls, the President’s direct authority over the armed forces as well as his ability to pull with the entire weight of the executive branch, while the Congress always struggles to move in the same direction, means the President can essentially do whatever he wants. Short of a full mobilization, the political cost will almost certainly be bearable. In military matters, the White House is essentially unconstrained.
(What should we make of President Obama’s move to go to Congress for a vote on Syria? Not much. For one, the White House has said they believe they’d still have the authority to act even if Congress voted against intervention. In addition, hawks have been quick to make clear the President should have attacked Syria without asking Congress for permission. Whatever the benefits of Obama having gone to Congress, so far it’s done little to alter the balance of power within the American system.)
The previous attempts to resolve this – both the original constitutional arrangement and the War Powers Resolution – failed because they didn’t meet the necessary requirements for a good policy on war powers: (1) such a policy has to be explicit and unambiguous in its application, (2) it has to provide the President with the ability to pursue small-scale military action independently, and (3) it has to give Congress the final say on whether or not to engage in discretionary escalation. The last two are the most difficult to reconcile. One solution might be to limit the President’s use of a certain class of assets – like foot soldiers or manned aircraft – to instances where he has received prior Congressional approval or the country has come under attack. That would still allow the White House to engage in limited bombing campaigns, subject to Congressional oversight and appropriations, but would mitigate the risk of escalation.
Whatever the ultimate solution, it will almost certainly require a Constitutional amendment to clarify the separation of powers as it pertains to war. That’s a high bar, but a much better outcome than either of the alternatives: (1) an unconstrained President or (2) an eventual court-led effort to impose a solution.
Follow Pedro on Twitter @IamPedroA.
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