Updated by Joseph Simnett
As we see more and more of Biden’s foreign policy unfurl, let’s take a retrospective of the controversies surrounding Trump’s actions in the Middle East. During his presidential campaign, many were enamored with Trump’s campaigning against “forever wars,” seeing him as markedly different to his predecessors on foreign policy.
Yet, on two notable occasions, Donald Trump bombed Syrian targets and hinted at overthrowing Bashar al-Assad. As with many apparently spontaneous military maneuvers, this leads us to wonder: didn’t Trump need authorization from Congress before acting? The answer, like many in politics, is yes and no.
Congress supposedly has a big say in declarations of war
A quick scan of the Constitution will tell you that Congress has the power to declare war, as well as the power to issue “letters of marque and reprisals.” For those not up on 18th century lingo, those letters provide the bearer with the power to capture an enemy who has left the country (typically by ship). It legalizes actions that would otherwise be considered piracy.
According to scholars like Charles Lofgren and Louis Fisher, these two levels of power combine to provide Congress with sole custody over the initiation of military operations big and small.
The president, in turn, has the power to act unilaterally in emergencies. We know this from Madison’s famous decision to change Congress’s power from “make” to “declare” war so presidents would be able to “repel sudden attacks.”
Once Congress has provided presidents with authorization, they have the power as commander-in-chief to conduct military operations. Congress can maintain discipline through the “power of the purse” — containing presidential adventurism by closing up the purse strings.
That’s the theory. But that’s not how it has worked in practice. In fact, Congress has issued only five declarations of war over the entire course of U.S. history. And yet presidents have deployed the military more than 300 times.
Executive say in war has increased over time
Thomas Jefferson sent the American navy to the Mediterranean to fight the Barbary pirates without prior congressional approval. James Polk marched the army up to the border with Mexico, all but daring the Mexicans on the other side to shoot. William McKinley and Theodore Roosevelt treated the American military like a “civilizing force,” sending it to the Caribbean and the Pacific to display America’s increasing might and open new markets for American products.
Executive power only expanded from that point on. World War I and World War II put enormous power in the hands of the executive to act unilaterally. By the time Truman became president, his predecessors had carved out a large enough space for unilateralism that he started the Korean War without ever receiving congressional approval.
After the “Imperial Presidencies” of Lyndon Johnson and Richard Nixon, Congress passed the War Powers Resolution, which was supposed to hold executives more accountable. But, while presidents will acknowledge that resolution’s existence, they never acknowledge its constitutionality.
The 21st century has seen more executives act without congressional authorization
By the time George W. Bush became president, he had decades of precedent providing him with good reason to assume he could initiate military operations without congressional authorization. And yet, after 9/11, Bush sought a congressional “Authorization for the Use of Military Force” (AUMF) to pursue terrorists and those who provide them sanctuary. He sought another AUMF in 2002 for military operations against Iraq.
This leads to a puzzle: presidents in the 21st century know they can initiate operations unilaterally. Members of Congress know they can sit on the sidelines. For the most part, presidents get the glory if it goes well and Congress wags their fingers if it goes poorly.
Presidents know that Congress is likely to abdicate responsibility, so when they want to take military action they avoid wasting the political capital needed to court the legislative body effectively.
In fact, for at least 100 years, there have been only two sorts of circumstances in which presidents have sought, and Congress has provided, congressional approval for military action:
- Direct attacks on American people or territory
This occurred for all of the declared wars as well as for the 2001 AUMF that followed 9/11.
- Vital U.S. interests at stake
George H. W. Bush made this claim to Congress to receive authorization for the first war in Iraq. George W. Bush claimed Saddam Hussein still had WMDs in 2002, leading Congress to provide him with the authority to initiate hostilities if he deemed it necessary. Since WWII, Congress has only issued an AUMF 8 times.
Even when there is a pressing humanitarian crisis, like in Kosovo, Sudan, or Syria, Congress has shown extreme reluctance to stand behind the president and provide authorization to use military force. It is a safe assumption that if there isn’t a clear U.S. interest; clear public support; a clear exit strategy, or a fearful population, Congress tends to allow presidents the power to sink or swim on their own.
The current system provides bad incentives for proper declarations of war
This is problematic for any constitutional system. It also facilitates reactive and poorly thought-out policy. Looking back on policy decisions over the last hundred years, we can see a cyclical pattern in which presidential adventurism leads to a period of relative isolation, during which time enemies (broadly understood) regroup and attack, leading to another round of presidential adventurism.
Congressional buy-in isn’t a magic bullet: Congress has contributed to plenty of mistakes. It does, however, force a president to deliberate about decisions and provide more clarity about the military objectives. This process is vital for producing better policy outcomes, fewer errors, and more responsibility for the vagaries of war.
Without an attack on the United States or a clear U.S. interest, however, Congress has proven unwilling to perform their constitutional duty. What happens if Congress doesn’t challenge the president? Without that check on executive power, presidents have long understood they have the authority — thanks to their constitutional powers and deference in the military to civilian control — to initiate nearly any operation, of any size, anywhere in the world.
The problem comes out most clearly in a quote from Congressman Jack Kingston from 2014. He accidentally told the truth when discussing the congressional decision to avoid giving Obama an AUMF. “A lot of people would like to stay on the sideline and say, ‘Just bomb the place and tell us about it later’… We like the path we’re on now. We can denounce it if it goes bad, and praise it if it goes well and ask what took him so long,’” he said.
Congressional deference doesn’t impede presidential adventurism. It facilitates it.
Decisions about how to spend American treasure and spill American blood comes from one end of Pennsylvania Avenue while the other looks on. Let’s hope that responsibility for Biden’s plan for Syria and Afghanistan falls on the right shoulders.
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This article was previously published on the Learn Liberty blog.
This piece solely expresses the opinion of the author and not necessarily the organization as a whole. Students For Liberty is committed to facilitating a broad dialogue for liberty, representing a variety of opinions.
