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Seven Awful Reasons for Bypassing Congress on ISIS

Maybe if we’re lucky, Congress will vote on the war against the Islamic State in Iraq and Syria—already underway—sometime next year [1]. While a few brave souls are calling for a vote before then [2], 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 [3] 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 [4], “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? [5]

7 Comments (Open | Close)

7 Comments To "Seven Awful Reasons for Bypassing Congress on ISIS"

#1 Comment By Rossbach On September 29, 2014 @ 10:48 am

This article defines the problem precisely. However, our nation’s wars rarely have anything to do with the actual defense of the country and are usually fought for domestic political reasons. So it is to be expected that congress will play politics with the process. They will grant the president just enough support before the election to initiate the action. If he fails, they can condemn the policy and cut off funding; if he succeeds, they can claim that they were on board the war wagon all along and authorize more funds. That way, they can avoid the political liability for making a dangerous decision.

Many US presidents have been criticized for ignoring the US Constitution. While that is certainly true, it would not be possible without at least the passive cooperation of congress.

#2 Comment By DMH123 On September 29, 2014 @ 12:05 pm

This article is chock full of mush. There are two things which are clear. First, the President has the authority to protect and defend the country. He doesn’t need to go to Congress to get permission.

Second, while the Constitution gives Congress the power to declare war, it doesn’t dictate the form of that declaration. After all, the purpose of a declaration is to grant authority to the Executive to wage war. The AUMF is no less a grant of authority than a “formal declaration”, whatever that means.

Ultimately, the sensible application of both these principles will be judged by a political process, not a legal one. If the voters believe a President has ignored his responsibility or authority to “protect and defend”, he and his party will pay a price at the next election.

#3 Comment By Clint On September 29, 2014 @ 1:58 pm

The power of Article 1 of Our Constitution is really The Power of The American People.

All members of congress take an oath to support and defend The Constitution of The United States.

#4 Comment By Michael N. Moore On September 29, 2014 @ 3:08 pm

As University of Washington professor Rebecca U. Thorpe points out in “The American Warfare State”, her definitive study of the political economy of military spending, Congress will never stop any President from going to war because a significant majority of them represent districts that depend on military spending.

The arms industry cherry picks or creates sub-contractors in ex-urban and rural areas where they become the monopoly employer. This particularly impacts Republicans. There is no longer any effective check on Presidential war powers and the politics of constant war follow.

#5 Comment By John Gruskos On October 2, 2014 @ 5:14 pm

Michael N. Moore is wrong.

Politicians have been known to support both large defense expenditure and a non-interventionist foreign policy, employing slogans such as “peace through strength” and “talk softly and carry a big stick”.

Congressman Mo Brooks is an intelligent patriot of this sort. The economy of his district depends on federal defense spending and space spending, which he of course supports, yet he oppossed senselessly agressive foreign policy initiatives such as the bombing of Libya and the arming of the Syrian rebels.

#6 Comment By Michael N. Moore On October 3, 2014 @ 10:34 am

Mr. Gruskos,

You’re one example proves nothing. Professor Thorpe has spent years gathering and analyzing the data. It shows a clear pattern of militarism and the House District having a unique dependency on war-related contracts.

#7 Comment By John Gruskos On October 3, 2014 @ 7:02 pm

Mr. Moore,

Was Thorpe’s theory able to correctly predict which Republican congressmen were most likely to defy their party leaders and vote against aid for the Syrian rebels?

If not, doesn’t that suggest that the correlation between defense spending and jingoism which she observes is not necessarily causation?

I encourage you to study the list of 71 Republican congressmen who voted against aid to the Syrian rebels, and compare it to the mere handful of Republican congressmen who defied party leadership to vote against the Iraq war in 2003. The heartening pattern I see is the breakdown of the hegemony of neoconservative foreign policy ideology within the Republican party, *particularly* amongst the most socially conservative Republicans, *despite* any alleged jingoistic influences from the military-industrial complex.