In the aftermath of the strike that killed Iranian general Qassem Soleimani, a debate struck up over the constitutionality of President Trump’s use of force. Senators from both political parties questioned whether existing congressional authorizations for the use of military force (AUMF) applied to the strike. In response, Democratic Senator Tim Kaine put forth a resolution demanding the removal of American forces from hostilities against Iran. His resolution is based on the 1973 War Powers Act which states that a president may only engage in hostilities without Congressional approval in times of national emergency. According to the resolution the president then has 48 hours to submit a report to Congress outlining the rationale for the deployment after which the use of military force must be terminated after sixty days unless granted a congressional extension for no more than a maximum of thirty days.
However, Senator Kaine’s resolution and the 1973 War Powers Act both reflect a serious misunderstanding about the interplay between the executive and legislative branches regarding the use of military force.
Advocates of restraining the executive’s authority to use force abroad point to Article I Section 8 as justification for doing so. Specifically, the clause they are referring to says that “The Congress shall have power… to declare war”. Yet, what did the Framers mean by “declare”? Is that the same as “engaging in hostilities” or “making war”? As the Framers understood it, declare meant: “to make known or publish”; “to proclaim some resolution or opinion”. This is reflected in their choice of wording throughout the Constitution as Article I Section 10 states that “No State shall, without the consent of Congress,... engage in war unless actually invaded, or in such imminent danger as will not admit of delay”. The difference between “to declare war” and “engage in war” is quite clear here as the latter clause makes explicit that armed self-defense is only legitimate when “invaded” or in “imminent danger”. By contrast, Article I Section 8 reflects the understanding that “to declare war” is instead a proclamation of a formal state of affairs with another nation. This is why the United States has only declared war five times but used military force abroad in more than a hundred instances.
So what powers are conferred under Article II Section 2 in its designation of the president as the “Commander in Chief of the Army and Navy of the United States”? As it has been interpreted by nearly every president, the power to engage in war and conduct foreign policy is a function best suited for a unitary executive. In The Federalist Papers, Alexander Hamilton noted as much when writing about the need for a “vigorous executive” in matters of foreign policy. “Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished”.
Not every military engagement amounts to war and it would be impractical to expect members of Congress to maintain the level of secrecy and discreteness necessary for conducting matters of national security. Requiring both houses to vote before authorizing any sort of military action would be a dysfunctional way to conduct foreign affairs especially in times of crisis. Simply from a functionality standpoint, it makes sense that one unitary figure would have control over the deployment and use of military assets abroad without the constitutional prerequisite of receiving permission from or even consulting with Congress. As Berkley Law professor and constitutional scholar John Yoo writes the president “is further vested with all of "the executive Power" and the duty to execute the laws. These provisions have long been recognized to give the president absolute command over the armed forces of the United States, to the point of ordering their use in hostilities abroad. Nowhere does the constitutional text provide that the commander-in-chief power cannot be used by the president to wage military hostilities unless Congress first issues a declaration of war”.
Furthermore, throughout the ratification process, instead of arguing whether or not congressional declarations of war restricted the executive’s ability to wage it, both the Federalists and the Anti-Federalists pointed to the relationship between the King and Parliament as a matter of the “sword” and the “purse”. This was reflective of their admiration for the British separation of powers framework which contained a powerful check on the executive’s ability to engage in war. As James Madison argued, “Apply it to the British Government, which has been mentioned. The sword is in the hands of the British King. The purse in the hands of the Parliament. It is so in America, as far as any analogy can exist. The purse is in the hands of the Representatives of the people. They have the appropriation of all monies”.
The Founders made clear that the tension between the branches would not be over the power of the “sword” which is why the 1973 War Powers Resolution has never been recognized as constitutional by any president.
The “power of the purse” was used to end American involvement in Vietnam when Congress refused to allocate funds for the conflict. The same applies to President Trump and Iran. If Congress doesn’t like his policy then it’s up to them to take away the only means of conducting it.
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