Biden’s authority on military assistance is clear — is he going far enough?

Among policymakers in Washington, it’s a common practice to throw up pseudo-legal or other abstruse obstacles to avoid making controversial decisions. It seems like such tiptoeing and handwringing has been common in the Biden administration since the beginning of Russia’s invasion of Ukraine. It’s important to understand that these policy questions are almost entirely prudential and fall squarely under the president’s statutory authority and constitutional duties.

The Constitution, both expressly and in structuring of the federal government, provides plenary presidential authority to act unilaterally to parry threats to national security. This is grounded in the recognition that such emergencies often present exigent circumstances demanding rapid response to be effective. Whether the U.S. or its facilities are under direct attack, or a friendly nation needs immediate assistance, the president is empowered to act swiftly when U.S. security interests are at stake.

This principle has been reaffirmed consistently by the courts and in practice by multiple U.S. presidents. As the Supreme Court recognized in United States v. Verdugo-Urquidez, “[T]he United States frequently employs armed forces outside this country — over 200 times in our history — for the protection of American citizens or national security.” The Department of Justice noted 10 years later, “On at least 125 such occasions, the president acted without prior authorization from Congress.” Congress also has recognized broad presidential authority, both generally and specifically — for example, the 1947 National Security Act establishing means to support the president in executing his national security duties, and the Authorization for Use Military Force that followed the 9/11 attacks.

While Congress has the constitutional authority to declare war and to raise armed forces, it is ill-suited to managing the response to national security emergencies where immediate military steps may be needed. Thus, the Founders in their wisdom not only made the president the national government’s chief executive, but also the commander in chief of its armed forces. The president has not merely the legal authority to defend the nation’s security, but the duty to do so.

In short, when the United States is confronted with a national security emergency, the responsibility to respond is firmly in the president’s hands.

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No one is seriously contending that Russia’s invasion of Ukraine is other than a national security emergency. The Russian incursion is precisely a circumstance that justifies the swift exercise of presidential authority to secure U.S. interests. An invasion by Russia designed to topple the democratic government of a country that sits at NATO’s eastern border is an obvious threat to America and its allies. If that incursion is to be successfully resisted, time is of the essence in providing not just military assistance generally, but that specifically needed to parry the threat to U.S. security interests. 

Given that an avowed enemy of both the U.S. and of freedom worldwide appears to have badly miscalculated militarily, our country also has an invaluable opportunity to reduce Russia’s capability to cause global instability and undermine American interests broadly. 

If President Biden were to ask the attorney general whether he has the authority to support the military defense of Ukraine against Russia’s invasion, the answer would be a quick and resounding “yes.” That authority just as clearly includes supplying such aid as is needed by Ukraine to maintain the integrity of its national airspace.

Whether or what to provide by way of military assistance are, of course, policy questions that, just like the legal authority to use military means, are matters for the exercise of presidential discretion. But that is not the end of the constitutional analysis of the Ukraine national security issues. Our governmental structure relies on a delicately nuanced series of checks and balances designed to promote both review of and accountability for governmental actors’ exercise of constitutional authority.

Perhaps over decades serving in the U.S. Senate, President Biden learned to calculate political windage before acting. It is precisely that approach that makes a legislative body ill-suited to managing the response to a national security crisis. Many question already whether the president’s use of plenary authority to act is unproductively guarded, if not reluctant.

Our system demands a level of accountability that is at least equal in scope to the power to act. The president’s current approach is bound to raise questions about his responsibility for the fate of Ukraine’s legitimate government — and whether an opportunity to greatly diminish the capabilities of an over-extended Russian military is being squandered. While hearing from members of Congress about U.S. policy choices is useful, ultimately the American people will judge whether the president has exercised wisely his constitutional powers and responsibilities to protect America’s national security interests in response to Russia’s war on Ukraine.

George J. Terwilliger III served as the deputy attorney general of the United States under President George H.W. Bush and is a lawyer in Washington.