“Make” or “declare?” Article I, Section 8 of the Constitution grants Congress the authority to “declare war.” It doesn’t say “make.”
And so the war powers of the United States perplexed the Founders at the 1787 Constitutional Convention in Philadelphia. The fight centered on which verb best described the clout and whether the authority to use military might should reside with the legislative or executives branches.
In many respects, the Founders clouded the war-making power in the Constitution.
Article II, Section 2 states that “The President shall be Commander in Chief of the Army and Navy of the Unites States and of the Militia of the several states, when called into the actual service of United States.” As they did so frequently to gain consensus to ratify the Constitution, the Founders simply diffused the “war” prerogative across those two branches of government.
While the Founders were specific about the role of Congress in war, they were vague when implying the authority of the president.
The Founders worried that Congress may not be nimble enough to respond to a foreign invasion or other imminent threat. This was a bigger problem in 18th Century America, when information traveled fastest via smoke signal. It wasn’t practical to corral lawmakers spread to the four winds and hustle them back to Washington for an urgent debate about “war.”
Furthermore, the Founders wanted deliberation about war. After all, Europe was stocked with monarchs who unilaterally declared war about this or that, sending others off to do the fighting. The Founders hoped to avoid war when possible. James Madison once wrote to Thomas Jefferson explaining that the executive “is the branch of power most interested in war, & most prone to it.” So they made sure Congress had a role.
Thus, if the incipient nation was to wage war, representatives in Washington would make the decision on behalf of their constituents. Not on the lark of a sovereign.
The divergent decision by the Founders leads us to the conundrum now facing the U.S. and recent military strikes in Syria. Bifurcated authority gives both of the branches of government the opportunity to act within this sphere. It also means one branch can dodge its war responsibilities, absent a pleasant political outcome.
The public supported the resolution to launch the Gulf War in 1991. Thus, Congress authorized the “liberation of Kuwait.” The same was the case after 9/11 and in the lead-up to the 2003 invasion of Iraq. But Congress hasn’t directly tangled with “war” or AUMF (Authorization for Use of Military Force) resolutions since approving the Iraq measure in the fall of 2002.
In fact, Congress and multiple administrations have repeatedly used the 2001 authorization as sufficient justification to sidestep a new congressional blessing to deploy American military assets overseas.
Congress hasn’t formally “declared war” since 1942, and that was a resolution to start a war with “Rumania.” The U.S. has only officially declared war 11 times since 1789.
In the modern era, Congress more frequently approves an AUMF. The Gulf of Tonkin Resolution in 1964 is one such an example. The goals of the Gulf of Tokin resolution sounded noble enough: “To promote the maintenance of international peace and security in southeast Asia.” Its consequences were a lengthy and unpopular engagement in Vietnam.
Enter the War Powers Resolution of 1973. Congress was weary of the Johnson and Nixon Administration’s dispatching troops to Asia – thanks in part to the elasticity of the Gulf of Tonkin Resolution. The War Powers Resolution gives the President two days to tell Congress about military operations overseas. Congress can stop action within two months.
President Trump sent to Congress a brief explanation of the airstrikes he ordered earlier this month in Syria.
“The purpose of this military action was to degrade the Syrian military’s ability to conduct further chemical weapons attacks and to dissuade the Syrian government from using or proliferating chemical weapons,” the president wrote to House and Senate leadership.
He also said, “I acted pursuant to my Constitutional authority to conduct foreign relations and as Commander in Chief and Chief Executive.”
Trump said he told Congress “as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution.”
No administration, dating back to the inception of the War Powers Resolution, has ever fully recognized the measure.
That’s why Trump said his missive to Congress was “consistent with the War Powers Resolution” and not “in compliance with the War Powers Resolution.” Also note that the president told lawmakers he had authority “as Commander in Chief and Chief Executive.” That’s the provision afforded the president in Article II, Section 2 of the Constitution.
At no point did Trump reference the right to “declare war” as afforded Congress under Article I, Section 8. After all, Trump and other presidents are confident they have the power to act under Article II. And so long as Congress is willing to punt on AUMF’s or war declarations, presidents will act.
Ahead of the airstrikes, House Speaker Paul Ryan, R-Wis., gave the president a wide berth, regardless of Congress’s powers vested in Article I.
“The existing AUMF gives him the authority he needs to do -- what he may or may not do,” Ryan said.
What the speaker refers to is the 2001 AUMF approved just after the Sept. 11 attacks. Three different presidents have now used that nearly 17-year-old AUMF as ample justification for more than 40 operations around the world.
Rep. Barbara Lee, D-Calif., was the only member of either Capitol Hill chamber to oppose the 2001 AUMF.
“That resolution was passed days after 9/11. It was a 60 word resolution. It was not specific. It was a blank check. It set the stage for perpetual war,” she said.
Lee argues Congress is avoiding its duty, relying on an outdated AUMF.
“We are missing in action. We are AWOL,” said Lee, who backed a plan last year to repeal the 2001 AUMF.
Congress fell into this trap of relying on the 2001 authorization because it didn’t have the votes nor spine to approve any other AUMF’s. It’s easy to approve a broad resolution in the frightening moments following 9/11. It requires some pluck to vote for or against an authorization away from the fanfare.
Should the U.S. be in Niger? Well, American troops were killed on the ground there. Libya? I give you Benghazi. Chad? Yemen?
All authorized, though not specifically, by the 2001 resolution, designed for Afghanistan.
Votes for war -- or a euphemism like an AUMF -- are hard votes. It’s easy to rely on something that was popular to approve 17 years ago. And nobody wants to be blamed for voting to end operations when the U.S. may be using forces overseas in covert ways to save American lives and prevent domestic attacks.
“This was within the President’s authority,” House Armed Services Committee Chairman Mac Thornberry, R-Texas, said of the Syria strikes. “The question is: Do you have to have Congress approving every cannonball that you shoot or is there a line somewhere in the middle?”
The AUMF debate is far from a partisan issue.
“While the president has the authority under the War Powers Act to respond when the U.S. is under attack or in imminent danger, such circumstances did not exist with regard to Syria,” said Sen. Mike Lee, R-Utah.
“Promoting regional stability, mitigating humanitarian catastrophe and deterring the use of chemical weapons might be important foreign policy goals. But if they are to be pursued with military force, a president must first seek congressional authorization.”
“Bombing a country is an act of war,” said Rep. John Garamendi, D-Calif. “The recourse is for Congress to get enough courage to obey the Constitution.”
A coalition of bipartisan senators is now crafting an updated AUMF to replace the 2001 authorization. It’s unclear if that measure has a chance of supplanting the old resolution.
“Congress has kind of shirked its responsibility,” said Sen. Jeff Flake, R-Ariz. “The administration needs Congress to have skin in the game.”
Lawmakers from both sides of the aisle expressed reservations about the 2001 AUMF for years, but nothing has happened.
Congress may have the power to “declare” war. But like so much in the Constitution, those dispensations hinge on political calculus. “War” is nettlesome. And if there’s little political upside, Congress isn’t going to “declare” war, let alone debate it.