Congress Should Reassert Warpower, Stop Endless Wars
Newly proposed legislation could go a long way towards restoring foreign policy restraint and constitutional order.
For America the 21st century has become the era of endless wars. Successive irresponsible presidents ignored history, presumed omnipotence, and imagined glory while entangling the U.S. in distant conflicts of minimal importance. Hence two decades of war in Afghanistan which is only now ending. And nearly two decades of much on and some off conflict in Iraq, which continues today.
Along the way Washington promoted civil war in Libya and helped the Saudis commit murder and mayhem in Yemen, making Americans accomplices to war crimes. The U.S. also launched endless drone campaigns across North Africa, throughout the Middle East, and into Central Asia. With nary a nod to principle or prudence, the U.S. employs “signature” strikes against unknown people sighted acting in ways which might be consistent with actions taken by terrorists—or anyone else. Yet supposed allies, most importantly Saudi Arabia, Israel, United Arab Emirates, and Afghanistan, remain dissatisfied, ever ready, eager even, to fight their enemies to the last American.
Blame is widely shared. Presidents have come to see themselves as elective dictators. They take an oath of office to the Constitution but seek to minimize restraints on their authority. When it comes to war, they believe the claim “everyone else does it” is an argument and treat legal violations by previous officeholders as unassailable precedent. They act as if congressional acquiescence equates to divine approval.
Worse is Congress. Tasked by the Constitution with deciding whether the executive can take the country into war, the legislature long ago abandoned its responsibility, effectively surrendering that power to the president. Indeed, members are fearful, even resentful, when asked to cast a ballot as expected by the nation’s founders. Rather than make difficult decisions and be held politically responsible, today’s solons cheer the president in victory, criticize him in defeat, and insult him in peace. With Capitol Hill filled with loutish warmongers—Lindsey Graham, Tom Cotton, Marco Rubio, and many more who glory in endless war—presidents are vilified for ending conflicts which legislators were too cowardly to authorize.
In this regard, at least, the Democratic takeover of Capitol Hill has been a boon. A serious peace caucus, including Senators Bernie Sanders and Chris Murphy and Rep. Ro Khanna, among others, has emerged. They pressed the Trump administration, especially over its murderous willingness to assist Saudi Arabian Crown Prince Mohammed “Slice ‘n Dice” bin Salman. And they have continued to demand executive accountability with the Biden administration.
Facing a potentially less hostile White House, a bipartisan group of legislators is now pressing to curtail unilateral presidential war-making. Senators Murphy and Sanders, joined by independent-thinking Republican Mike Lee, would address presidents who initiate hostilities without congressional approval, militarize foreign policy through arms sales, and declare endless emergencies.
First, the proposal updates the Vietnam War-era War Powers Resolution, which has been ineffective—largely ignored by presidents and unenforced by legislators. Instead of setting broad requirements that military commanders-in-chief routinely ignore, the bill would define hostilities, covering any use of force and not just deployment of ground forces, mandate an end to combat after 20 days without congressional authorization, and defund unapproved military operations.
Second, the measure would limit authorizations to use military force, like that approved after the 9/11 terrorist attacks, which linger even though the circumstances of their passage long ago passed. Presidents have routinely abused past enactments, using them to justify military action in different regions against different groups, even those which didn’t exist when the original measures were approved. The four AUMFs, including one from 1957, still technically in force would sunset.
Third, the Senators would require an affirmative congressional vote to approve arms sales. Weapons transfers, an important foreign policy tool, often underwrite some of the most oppressive regimes and fuel some of the most brutal conflicts on earth. Yet Congress must override a presidential veto to stop them today. Thus did Trump continue to supply weapons to the ruthless Saudi royals as they attacked civilian targets in Yemen, in which Riyadh sought to reinstall a puppet regime.
Fourth, the legislation would limit use of “national emergency” declarations, which currently can be overturned only with the same two-thirds vote to defeat a veto. In the future, Congress would have to approve any declaration within 30 days as well as renewals after a year. (An incredible 39 emergencies, some going back a half century, are currently in force, though mostly ignored.) Moreover, presidents would be restricted to using only powers related to the emergency.
Passage won’t be easy. Biden, who spent most of his political life in the Senate, previously indicated support for war powers reform, but did not indicate how far he is prepared to go. In March presidential press secretary Jen Psaki said the administration backed changes to “ensure that the authorizations for the use of military force currently on the books are replaced with a narrow and specific framework that will ensure we can protect Americans from terrorist threats while ending the forever wars.”
However, the proposed measure goes much further. Foreign Policy’s Robbie Gramer reported that Senate Democrats have alerted the administration to the legislation, but not yet discussed its specifics. Some of Biden’s predecessors lost their enthusiasm for limiting presidential war powers after being elected president.
The informal Senate GOP warmonger caucus is likely to be strongly opposed. Some members cannot imagine a world in which the president is not allowed to wander the globe bombing, invading, and occupying other nations at will. Its members desire that even Democratic presidents constantly engage in endless wars. For them, war is the default solution to almost any international problem.
Yet it is difficult to overstate the desirability of reform. As the administration’s latest strikes in Syria illustrate, the intersection of America’s extraordinary power and technology’s extraordinary transformation allows today’s presidents to engage in both constant and ubiquitous hostilities, avoiding constitutional constraints originally imposed.
Although new legal rules are necessary, they are secondary. Most important is rediscovering an older mindset, renewing legislators’ willingness to fulfill their responsibilities under the Constitution to the people they represent, and insisting that presidents do so as well.
The work of the Founders endures because they understood human nature and the temptations of power and drafted the Constitution accordingly. They sought to make war less likely by denying presidents the power to go to war and limiting their use of the military. Supreme Court Justice Antonin Scalia explained: “Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the president under Article II.”
This is not a close issue. Insisted Columbia law professor John Bassett Moore: “There can hardly be room for doubt that the framers of the Constitution when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory, and killing their soldiers and citizens, all according to his own notions of the fitness of things, as long as he refrained from calling his action war or persisted in calling it peace.”
The nation’s Founders were clear. For instance, Alexander Hamilton wrote that the president’s authority was “in substance much inferior to” that of the king, who not only directed the military but also could declare war. James Madison cited the “fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature.” Thomas Jefferson wrote of the “effectual check to the dog of war by transferring the power of letting him loose.”
George Mason insisted that the president “is not safely to be entrusted with” the power to take the country into war. The objective was “clogging rather than facilitating war.” James Wilson explained that the constitution “will not hurry us into war.” To the contrary, “It is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is in the legislature at large.”
Americans, and peoples around the world, pay a heavy price when presidents subvert the Constitution and usurp Congress’s warpower. The new Senate legislation—soon to be accompanied by a companion House bill—would help restore the original system. At a time of enormous partisan hostility and deadlock, legislators should again join, as Jefferson urged, to check “the dog of war by transferring the power of letting him loose.”
Doug Bandow is a senior fellow at the Cato Institute. A former special assistant to President Ronald Reagan, he is author of Foreign Follies: America’s New Global Empire.