The War Powers Resolution doesn’t let the president start wars

Congress is split on the legality of President Trump’s strikes on Syria. On Friday, 88 bipartisan members of the House sent him a letter stating that congressional authorization is required. Others say he has authority for one-off strikes, but not prolonged engagements.

Some even claim the president can make war for up to 60 days at his discretion. This argument is at best a misunderstanding of the War Powers Resolution and the Constitution, and at worst, it is a willful and negligent lie.

{mosads}The War Powers Resolution of 1973, which Congress passed overriding President Nixon’s veto, was meant to implement the Constitution’s separation of powers between Congress and the president for the initiation and conduct of war. Congress alone has the power to declare war. Authority over the standards to “suppress Insurrections and repel Invasions” belongs to Congress as well.

The president is commander-in-chief of U.S. armed forces. He decides how best to conduct military operations once they have been authorized — by Congress — or how to respond to an actual or imminent attack. Managing an active conflict is an executive function that requires the quick response that a single point of decision-making provides.

The Constitution, however, gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution” not only Congress’ enumerated powers but also “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” In other words, Congress can shape the president’s commander-in-chief role through statutory law.

Declaring war is properly a legislative function, as the founders recognized. Thomas Jefferson wrote to James Madison in 1789, “We have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.”

Turning to the War Powers Resolution, section 2(c) (50 U.S.C. 1541(c)) states:

The constitutional powers of the president as commander-in-chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

If Congress doesn’t declare war or authorize the use of military force, the president may only introduce American troops into hostilities if we’ve been attacked to a degree sufficient to create a national emergency. The War Powers Resolution then — and only then — gives the president 60 days to address the attack. That period can be extended by 30 days if needed, or for such period as Congress authorizes.

Note that the attacker, not the president, initiates hostilities.

Isolated references to specific sections are misleading. Section 4 (50 U.S.C. 1543) requires reporting other than when a declaration of war has been made — that is, under an AUMF or when responding to an attack. Section 5 (50 U.S.C. 1544) includes the misunderstood 60-day period noted above.

But context matters. These provisions are secondary to the general rule specified at the beginning of the Act, not independent of it.

James Madison wrote in Federalist 41, “Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.” The War Powers Resolution must be read in full, in which each provision is related to every other, particularly the general rule in section 2(c).

Finally, section 3 states, “The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities…” Without context, it appears to dismiss Congress. When understood as subsidiary to the general principle — no initiating hostilities without Congress — it is an obligation, although too vague to be meaningful.

Claiming that the president has unilateral authority absent an attack is a convenient falsehood. The advocates of expansive presidential power obviously prefer letting him have a relatively free hand. That, of course, includes much of the foreign policy establishment, whose prestige and influence is directly correlated to an activist foreign policy that they can shape.

Presidents prefer discretion, and they use it. Presidential candidates tend to campaign for restraint but end up governing as interventionists:

Presidents have incentives to exercise and expand the powers at their disposal. Since foreign policy is an area where presidents face few constraints, they are especially prone to intervene with military force abroad — regardless of their previous campaign rhetoric or party ideology.

If Members of Congress were serious about separation of powers and their institutional prerogatives, they would exercise their authority and prevent that from happening. As Jefferson hoped, war-making would be accountable to the people and the taxpayers through their representatives in Congress.

But each individual member benefits politically from avoiding difficult subjects like war, which is sometimes necessary but always terrible. A president with a free hand benefits legislators because it lets them avoid accountability and responsibility to the people they are charged with representing.

Compelling Congress to stand up for its powers and against executive branch usurpation requires leadership and courage. The convenient untruth that presidents have unilateral but time-limited war-making power must be rejected.

No single person should have the power to unleash America’s colossal military might. In our system, no individual legitimately has such power.

Only Congress can authorize war. Otherwise the president may only respond to attacks on the United States or U.S. Armed Forces. Doing more is unconstitutional, illegal, undemocratic, immoral, and imprudent.

Kurt Couchman is the vice president of public policy at Defense Priorities. He previously served as a policy expert in congressional offices, most recently as a legislative director for a Republican member of the House of Representatives. Follow him on Twitter @KurtCouchman.