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We need to bring back Congress’ power over declaring war

Conservative Review

Amidst the chaos of any sudden use of military force, there are numerous opinions, observations, and pearls of wisdom offered regarding the action. These opinions often fall along non-ideological lines that we are not used to seeing on domestic policy issues. But considering the airstrike against Assad’s airfield last night, there is an opportunity for people on all sides to unite behind the general need for congressional authorization of force. We must move back towards the direction of getting congressional approval at least for protracted engagements that are war in all but name only.

Putting aside any debate over the air strike last night, going forward it is clear both from a political and legal standpoint that any calls for a more protracted engagement in Syria should be backed by a Declaration of War or an Authorization of Use of Military Force (AUMF). This is a policy that should be enthusiastically embraced by both proponents and opponents of a deeper engagement in Syria.

What the Constitution and the founders said about war powers

It is very clear that our founders, based on the reality of warfare defined in their time, believed that any initiation of offensive action taken against another nation must be approved by Congress. As James Madison said, there must be “rigid adherence to the simple, the received, and the fundamental doctrine of the [C]onstitution, that the power to declare war, including the power of judging of the causes of war, is fully and exclusively vested in the legislature; that the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war…”

George Washington, in a 1793 letter to the governor of South Carolina regarding conflict with the Creek Indians, made it clear that the question to initiate any major offensive war was out of the hands of the president: "The [C]onstitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure."

On the other hand, any decisions about the execution of the war thereafter or to immediately repel an invasion were placed squarely in the hands of the president. This arrangement was born out of the Article I Section 8 enumerated congressional power to declare war on the one hand, but the president’s role as commander-in-chief of the armed forces on the other.

This is also why Madison had the convention members alter the original draft of the Constitution, which gave Congress the power to “make war,” to a more limited language of “declare” war, making it clear that all operations beyond the initial declaration would not be subject to the chaotic whims of 100 people.

The question of how to square modern day war fighting, communications, transportation, and logistics of urgency and secrecy with Congress authorizing every use of force is a complicated one. One can make a strong argument that the definition of war has changed and that the need for urgent or clandestine action could be justified under Article II commander-in-chief powers. Clearly, this has guided every president since World War II and the fact that we have special operations ongoing in 140 countries. Without addressing one-time urgent surgical strikes, such as last night’s bombing or the broader use of special forces, it’s important that everyone agree we need to move away from the post-WWII trend of almost never getting authorization from Congress for anything, even protracted commitments that are tremendously costly and consequential.

Congressional buy-in is not just a Constitutional requirement, but a strategic one

Although there are many reasons one can posit why we have failed to win most wars post-WWII, it is no coincidence that our losing streak began when we stopped declaring war. A congressional debate over making such a grave commitment and an ensuing declaration of war is not just a constitutional imperative, it is a political and strategic one.

A declaration of war allows the entire representative body of the people to raise the important questions about our strategic interests, definition of the mission, feasibility, and cost of achieving that mission, and the exit strategy. If Congress votes to pass a resolution, it serves as a definitive guide for defining the enemy, how victory is achieved, and what success looks like. This further serves the purpose of rallying the country behind a defined mission because public support is always needed to achieve such victory. This is what we have been lacking in most engagements since WWII.

Based on the statement put out from the Trump administration, it is very possible that last night’s bombing was limited to deterring the proliferation of WMD and is not part of a broader engagement. But if the administration or Republicans in Congress believe we must further engage in the Syria civil war, a view I personally disagree with, even supporters of such action must agree to the imperative of congressional buy-in.

The same way some may argue that the requirement for a declaration of war for any offensive action by the president, in the modern era, necessarily abrogates his role as commander-in-chief, the continuation of endless protracted ground missions in the Middle East without any declaration from Congress completely overrides the unambiguous dictates of Article I powers. Moreover, it ensures that our troops remain in precarious situations indefinitely without any definitive mission or understanding of how to achieve victory. Thus, the opportunity for a congressional debate over authorizing force is good for both opponents and proponents of any given military engagement.

Yet, there is a dangerous notion being peddled by Sens. Mitch McConnell, R-Ky., and John McCain,R-Ariz., that the AUMF passed by Congress in 2001 is somehow a retroactive catch-all for any engagement against any conventional or non-conventional adversary in the entire Middle East until the end of time. Such a worldview completely vitiates our Constitution and ensures that every new engagement in the Middle East will result in the same failed outcome to which we have grown accustomed.

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