The United States has recently undertaken military action in five different countries. The case for congressional involvement in the decision-making process has hardly been self-evident. Congress has already enacted two Authorizations to Use Military Force, in 2001 for Afghanistan, and 2002 for Iraq. Presidents have used force over 200 times without congressional approval. Presidents Obama and Trump both have said no further authority is needed. The courts haven’t disagreed. The underlying objectives—defeating ISIS, countering terrorist threats, punishing the use of chemical weapons—seem sensible enough. Why should Congress get involved?
Congress should now get involved because the nation would benefit from thorough hearings, markups, and floor debate on new legislation that lays out clear objectives, authorizes force necessary to achieve those objectives, sets clear limits, and updates or repeals obsolete statutory authorities. The arguments against doing so are weak.
ADVERTISEMENT
First, the two earlier laws have no application to the use of force against Syria. As to ISIS, the 2001 law authorized use of force against the two authors of the 9/11 attacks, Al Qaeda and the Taliban.
It’s unconvincing to read it as authorizing war against ISIS—an organization that is now fighting against Al Qaeda in Syria, that had no hand in the 9/11 attacks, and that did not even exist until years afterward. The 2002 law authorized use of force against Saddam Hussein’s Iraq—not to protect post-war Iraq against either internal or external threats such as ISIS.
Second, it’s true that the longstanding practice provides a gloss on the constitutional text. Presidents have used force many times without congressional approval. But nearly all of those incidents involved fights with pirates, cross-border skirmishes with bandits, minor naval engagements or other actions that did not pose significant risks of retaliation against American targets or the risk involvement in a wider war. The Constitution permits the president to use defensive force in national security emergencies—violent threats to the nation so imminent that Congress has no time to act. In non-emergencies, such as punishing Bashar Assad for the use of chemical weapons, prior congressional approval is required.
Third, although it’s true that the courts have not stepped in thus far, the reason is simply that jurisdictional requirements are hard to meet. Courts typically dismiss war powers challenges for want of standing—the plaintiffs are said not to have suffered concrete, personal injury—or because the suits are said to present political questions not appropriate for judicial resolution. Nothing can be inferred from judicial silence concerning the merits of these challenges. Indeed, in one of the most prominent such law suits—in Dellums v. Bush, in 1990—the court, in dicta, rejected claims of broad executive war power. It said:
If the Executive had the sole power to determine that any particular offensive military operation, no matter how vast, does not constitute war-making but only an offensive military attack, the congressional power to declare war will be at the mercy of a semantic decision by the Executive. Such an “interpretation” would evade the plain language of the Constitution, and it cannot stand.
Recently, the courts have again been asked to reaffirm the limits on presidential war powers. Captain Nathan Smith, an Army intelligence officer ordered to participate in the ISIS war, challenged his orders in court as violative of the 1973 War Powers Resolution. The Resolution requires that the armed forces be removed from hostilities within 90 days unless Congress specifically approves. True to form, the lower court dismissed Smith’s case. Last week I filed an amicus brief, with The Constitution Project, supporting Captain Smith’s appeal. We argue, with Smith, that reading the 2001 and 2002 laws as a general authorization is ruled out by the Resolution’s requirement that any use of force be specifically authorized.
The Smith case thus asks courts to perform the duty that the Constitution confers on them, the obligation proclaimed by Chief Justice Marshall in Marbury v. Maryland (1803), “to say what the law is.” The judiciary has met that responsibility in significant war powers disputes in the past. Only a year after Marbury was decided the Supreme Court, in Little v. Barreme, held that a U.S. naval captain had acted unlawfully when he followed a presidential order that was at odds with a statute enacted by Congress. In the 1952 Steel Seizure case, President Harry Truman claimed that seizure of the nation’s steel plants was needed to supply steel to prosecute the war in Korea, but the Supreme Court found that his action was unconstitutional.
Finally, no meaningful debate has occurred on whether America’s national interest requires military action against ISIS or Syria, what the strategy should be, or at what point domestic priorities should prevail. No member of Congress has been politically accountable because no member has voted on an ISIL-specific or Syria-specific authorization. The incentive to avoid accountability is ubiquitous. But in the end, the strength of our separation-of-powers system rests upon public officials’ willingness to take a stand. An example was set by Abraham Lincoln, who stood up for principle in opposing the war against Mexico. He said:
The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.
Last week, President Trump said he had given the military “full authorization.” The Constitution of Lincoln and the Founding Fathers does not confer full authorization on the President, let alone on the military. Whether we now have a different Constitution is the question confronting Congress.
Michael J. Glennon is a law professor at the Fletcher School of Law and Diplomacy, Tufts University. In the 1970s he was the Legal Counsel to the Senate Foreign Relations Committee.
The views expressed by this author are their own and are not the views of The Hill.
