Article I, Section 8 of the Constitution grants Congress the authority to "declare war."
But Article II, Section 1 of the Constitution declares "The President shall be Commander in Chief of the Army and Navy of the United States."
In other words, who is in charge when it comes to sending troops into harm's way? Or better yet, what qualifies as "war" against another power overseas?
A narrow reading of Article II, Section 1 says that the President has the ultimate authority to dispatch troops into battle. Another, concise reading of the Constitution suggests that while Congress only "declares war," the president decides where troops go and what they do. Moreover, if only Congress may legally declare war, is the President doing something else than committing U.S. forces "to war" when he orders military action without a Congressional blessing?
This issue surfaces at an interesting intersection in time in Washington.
The House of Representatives just voted to repeal a "war powers" measure Congress approved in the fall of 2002 to authorize the 2003 war in Iraq. The vote was 268-161. This was known, not directly as a "declaration of war," but as an "AUMF." That’s Washington-speak for an "Authorization for Use of Military Force." Congress hasn’t declared war since the 1940s. What it relies on now is an AUMF to meet the Constitutional requirement for sending troops into hostilities. Congress approved a similar AUMF in the fall of 2001 after 9/11. Even the Gulf of Tonkin Resolution Congress okayed in 1964 for the Vietnam war is similar to a conventional AUMF.
But Presidents have used their direct authority for decades to control the military, ordering action and talking to Congress later. Some of that is by necessity. It would be virtually impractical for the Commander in Chief to head to Congress first for legislative sign-off before strikes – especially those based on pending intelligence or even in response to an imminent threat.
White House spokeswoman Jen Psaki says President Biden ordered weekend airstrikes on the Iraqi/Syrian border "pursuant to Article II authority to defend U.S. personnel." Psaki added that this was "self-defense" and "the defense of the United States and our interests is our domestic justification for these strikes."
There were concerns that these pro-Iran outposts were involved in plotting attacks against U.S. forces in the region.
But that doesn’t mean that lawmakers don’t have questions.
After the airstrikes, House Speaker Nancy Pelosi (D-CA) said defending American troops "must always be our top priority." But the Speaker noted that Congress required "additional briefings" about the operation and she wanted to review "the formal notification of this operation under the War Powers Act."
The 1973 War Powers Resolution was an effort by Congress to rein in presidential administrations as it pertains to military operations overseas – without direct Congressional approval. The War Powers Resolution mandates that administrations brief lawmakers at various times if they launch strikes or commit troops overseas. This was in response to Vietnam. But in many respects, the War Powers Resolution actually granted Presidents more power to send troops where they want and answer congressional questions later.
"The Intelligence Committee will closely review the basis for this strike, including an assessment of whether this action will truly deter or prevent further attacks," said House Intelligence Committee Chairman Adam Schiff, D-Calif.
But Sen. Chris Murphy, D-Conn., indicated that "repeated retaliatory strikes" appear as "what would qualify as a pattern of hostilities under the War Powers Act."
Murphy said the Constitution and the War Powers Resolution "require the President to come to Congress for a war declaration under these circumstances."
This all comes as the Senate Foreign Relations Committee conducts a hearing on the repeal of the 2002 AUMF in mid-July. And, lawmakers from both sides are still seeking to roll back or update the 2001 AUMF tied to 9/11. The House of Representatives on Monday repealed the 1991 AUMF for the first Gulf War and a calcified 1957 AUMF for the Middle East which the U.S. never leaned on.
This debate emerges as President Biden pulls troops out of Afghanistan after nearly two decades – despite the continuation of the 2001 AUMF.
"Congress cedes its authority to the executive branch," said House Foreign Affairs Committee Chairman Gregory Meeks (D-NY). He argued it was necessary for Congress to "reclaim our authority over war powers."
"The legal and practical application of the 2002 AUMF extends far beyond the defeat of Saddam Hussein’s regime," said Senate Minority Leader Mitch McConnell (R-KY). "Tossing it aside without answering real questions about our ongoing efforts in the region is reckless."
Lawmakers from both parties have railed against the 2001 AUMF for years. Congress approved that resolution just days after the 9/11 attacks. The nation was rattled – as well as lawmakers. It’s natural that Congress would adopt such a measure with overwhelming support after September 11th. As a result, the 2001 AUMF granted multiple administrations vast latitude to deploy military forces around the world – all in the name of fighting the "war on terror." Congress barely balked – until a decade ago.
Those words don’t quite echo the same way in 2021 as they did in the hours immediately following 9/11 with Lower Manhattan and the Pentagon still smoldering from jet fuel.
In other words, has the U.S. been "at war" in dozens of countries around the world for decades now – thanks to the 2001 AUMF? And if so, lawmakers have asked if it isn’t time to either repeal or update such a document? The Obama and Trump Administrations later repurposed the 2002 AUMF for the 2003 Iraq war as its legal justification to fight ISIS. The Trump Administration also exercised the 2002 AUMF to justify killing Iranian General Qassem Soleimani with a drone strike in 2020.
The White House backs the 2002 AUMF repeal. The Biden Administration contends it doesn’t rely on the 2002 AUMF for current military engagements abroad. Senate Majority Leader Chuck Schumer, D-N.Y., says the Senate will consider the AUMF repeal later this year.
Presidents George H.W. Bush and George W. Bush made sure they had Congressional authorizations in 1991, 2001 and 2002 to move against a conventional threat. That certainly helped them politically. But multiple Presidents and Congresses have been lax in updating those "war-making powers" as time bleeds on. The worry has always been that a repeal of these AUMF’s would hamstring troops in the field. But in reality, some of these ossified AUMF’s actually just hamstrung Congress.
And what it means is that the U.S. has been "at war" for decades now. Even if Congress never declared it.