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Seven Awful Reasons for Bypassing Congress on ISIS

Michael Hogue

Maybe if we’re lucky, Congress will vote on the war against the Islamic State in Iraq and Syria—already underway—sometime next year. While a few brave souls are calling for a vote before then, the midterm elections seem to overrule the Constitution.

Perhaps lawmakers hope the ISIS intervention will be completed successfully before the next Congress is seated, obviating any need to take a political risk. But after two wars in the region that each went on longer than World War II, this seems highly unlikely.

Yet some people don’t think Congress should have to vote at all. More than a few defenders of expansive presidential war powers say they are conservatives.

Why do people who (rightly) oppose the president usurping the power to determine when the Senate is in recess so he can fill a National Labor Relations Board vacancy believe it is fine for him to flout the Constitution’s clear language that Congress shall have the power to declare war?

Several reasons for this are often given, all of them deeply problematic.

1. The War Powers Act says it’s okay (at least for 60-90 days). For more than 40 years, presidents have typically asserted that the 1973 War Powers Resolution is an unconstitutional encroachment on their executive authority. It was, after all, enacted to limit presidential war-making ability.

If anything, the opposite is true. The War Powers Act unconstitutionally transfers a power of the legislature to the executive. This can be done by constitutional amendment, but not by statute. Those who would say this is just another indirect way of authorizing military force would be unlikely to argue that Congress can grant the president the power to raise taxes for 60-90 days.

The Watergate Congress would have been better off defending its real war powers under the Constitution. The War Powers Resolution has demonstrably failed to rein in presidents and in fact provides their unauthorized military adventures with a patina of legality.

2. Presidents do foreign policy. You can’t run a war by committee with 535 commanders-in-chief. From ratifying treaties to confirming ambassadors, it is clear that the Framers did envision a foreign-policy role for Congress—that is, the body that appropriates the funds to pay the bills.

But nobody is denying that the president is sole commander-in-chief, as stated in the Constitution. The president has the power to manage wars. Congress has the power to authorize the initiation of war.

Frequently, Washington does the opposite. Congress outsources the decision on when to go to war to the White House, even in cases when it formally authorizes the hostilities. (Consider all the Democrats who voted for the Iraq War and then professed to be surprised when President George W. Bush actually went to war.) Then if the war becomes unpopular, it tries to micromanage the war through the appropriations process (see the Iraq timetables for withdrawal, etc.). The Founders understood this to be the worst of all possible worlds. So should we.

3. It is antiquated for Congress to declare war. This is a subset of the previous argument that only the executive is nimble enough to make war in modern times. Once again, presidents have the power to manage ongoing wars, to repel attacks against the American homeland or U.S. territory abroad, and other immediate military responses.

This does not extend to invading and occupying foreign countries, and the president does not have the power to initiate hostilities. This naturally creates some constitutional gray areas—when is the president responding to an attack or initiating a war—that the War Powers Resolution unsuccessfully tried to clarify.

But when the president attacks Libya without congressional authorization and without asserting any imminent security risk to the United States, we’re far removed from any gray areas. The same is true of the ISIS campaign.

Congress is also more capable of receiving information about national-security threats and acting quickly than it was when the Constitution was written. President Bush was granted authority to wage war in response to the 9/11 terrorist attacks within three days. It’s not hard to imagine steps for making the process even faster when it needs to be without giving all the power to the executive.

Finally, the Constitution provides a mechanism for provisions that no longer apply to current circumstances. It’s called the amendment process.

4. Presidents have gone to war without Congress numerous times. There are many versions of this argument. One is that Congress has only declared war five times. Another is that presidents have committed troops to battle without a congressional vote more than 100 times—the precise figure varies—since 1798.

Even if this claim were true, it doesn’t necessarily solve the constitutional question. There were more than 16,000 deaths by homicide in the United States in 2011. Homicide was and remains quite illegal in all 50 states plus the District of Columbia.

Citing the existence of a thing as proof of its constitutionality is an especially odd tactic for conservatives who argue against the constitutionality of the Affordable Care Act. Are the Alien and Sedition Acts of 1798, passed the same year as what executive power enthusiasts consider to be the first undeclared U.S. war, an argument against the First Amendment?

What is important is congressional authorization, not necessarily a formal declaration of war, and that has happened far more frequently than five times, as late as George W. Bush’s presidency. There was a large congressional role in authorizing the Quasi War with France and Thomas Jefferson’s dealings with the Barbary pirates, both frequently invoked as the earliest examples of presidential wars. To get to over 100 presidential wars, one quickly has to count things that were actually authorized by Congress or were not in fact wars.

As Thomas Woods has memorably written, “To support their position, therefore, the neoconservatives and their left-liberal clones are counting chases of cattle rustlers as examples of presidential warmaking, and as precedents for sending millions of Americans into war with foreign governments on the other side of the globe.”

5. Declaring war and authorizing a war aren’t the same thing. Former Bush legal adviser John Yoo has argued that a declaration of war is merely a “courtesy to the enemy” and does not “involve the initiation or authorization of hostilities.” According to this argument, Congress has the power to declare that a state of war exists while the president “retained the power actually to bring the country into war by commencing military action.”

It’s true that a declaration of war can mean what Yoo describes. The problem with his view that the president rather than Congress has the power to initiate war is that the Constitutional Convention explicitly rejected that idea. And during the ratification debates, the Federalists specifically argued that the president’s war powers were inferior to Congress’ and the British monarch’s.

If the Constitution actually said what Yoo claims, it probably never would have been ratified.

6. If Congress doesn’t like a war, it can use its “power of the purse” and defund the war. Indeed Congress could. But that doesn’t mean it’s the only constitutional war power Congress has. Many of the commentators who make this argument are precisely the same people who scream bloody murder when a congressional backbencher talks about defunding a war already in progress. And as a practical matter, it is difficult to defund a war once troops are in theater.

So in practice this isn’t much of a constraint on the president. Fortunately, it’s not the only one the Constitution provides.

7. Does a war become moral or in the national interest just because Congress authorizes it? This is an objection raised not by proponents of expansive executive war powers, but by some libertarians who think Congress’s constitutional war powers are of secondary importance.

Obviously, the answer to this question is no. Whether a war should be authorized is a separate question from who has the power to authorize it. But whether a war is being waged legally is one criterion for whether it is just.

And there are good reasons to believe that if the Congress took its war powers more seriously than either it or the executive branch presently does, it would act as another barrier—however imperfect—against the capricious resort to military force.

Certainly, the most reflexive advocates for war seem to think so.

W. James Antle III is editor of the Daily Caller News Foundation and author of Devouring Freedom: Can Big Government Ever Be Stopped?

about the author

W. James Antle III, contributing editor, is the Politics Editor at the Washington Examiner. A former senior writer at TAC, Antle also previously served as managing editor of the Daily Caller, editor of the Daily Caller News Foundation, and associate editor of the American Spectator. He is the author of Devouring Freedom: Can Big Government Ever Be Stopped? Antle has appeared on Fox News, CNN, MSNBC and NPR, among other outlets, and has written for a wide variety of publications, including the Wall Street Journal, Politico, the Week, the Los Angeles Times, the Boston Globe, the Daily Beast, the Guardian, Reason, the Spectator of London, The National Interest and National Review Online. He also serves as a senior adviser to Defense Priorities.

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