Getting war powers right

Congress is getting ready to repeal the two war authorizations for Iraq, the 1991 authorization for use of military force (AUMF) and the 2002 AUMF.  It’s a constitutionally reasonable thing to do. Current military operations in Iraq have nothing to do with those authorizations’ principal purposes of reversing Saddam Hussein’s invasion Kuwait and enforcing UN Security Council resolutions related to Iraq’s weapons of mass destruction.

While getting them off the books may not be a priority since no president for the past decade has made them the primary basis for operations in Iraq, as national security flotsam, the AUMFs give a public impression that a law’s relevance or irrelevance is not a concern of Congress. That’s a bad look. 

Although there is a wide-ranging debate among constitutional scholars about the exact lines between congressional and presidential war powers, it’s clear that the Framers intended that only Congress could move the nation into a state of war against another nation with which we were formally at peace. Even Alexander Hamilton, perhaps the most expansive reader of the executive power among the Founders, argued that only Congress could “actually transfer the nation from a state of peace to a state of hostility.”

But it’s also clear that the Constitution’s architects understood the president to have the power to defend attacks against the country without waiting for congressional approval. At the time of the founding, defending the country meant not just repelling attacks against the American homeland but also protecting American citizens, property, and rights under international law. 

Over time, as America’s role in the hemisphere and then the world expanded, so too did the country’s defensive needs. After the experience of World War II, American statesmen and the public agreed that the country’s defensive perimeter could no longer be safely defined as our water’s edge. What happens in Europe, East Asia and the Middle East could and would eventually impact U.S. national security. 

The expansion of the country’s defensive perimeter was not accomplished by unilateral decisions of successive presidents. The Senate agreed to security treaties that essentially encircled the Eurasian landmass and Congress, as a whole, expanded the commander in chief’s capacity by giving him a globally capable and preeminent military.

Moreover, with the exception of the Korean War, no president has taken major military action without congressional authorization. And even with Korea, there was bipartisan congressional recognition that the president was “authorized” to deploy the American military in support of an international police action under the UN charter, a treaty to which the U.S. was a signatory. As much as presidents routinely deny the need for a congressional authorization, they are usually reluctant politically to commit American forces to significant, offensive conflicts without it.

But this does not mean that presidents’ conceptions of their own war powers are faultless. Successive administrations have read the 2001 AUMF, directed at defeating those “responsible” for the 9/11 attacks, to allow the military to pursue jihadist terrorists across the Middle East, South Asia and North Africa, regardless of their lack of connection to the attacks on New York and Washington.

To the extent there is evidence that these groups pose a threat to the U.S. military or citizens, the president can rely on his Article II powers to protect the country. But Congress has been reluctant to examine whether all these groups do so with the kind of depth one would expect if it were protecting its own war powers authority.

More significantly, recent administrations have claimed an inherent constitutional authority to use military force in limited military operations to protect “important national interests.” This was the basis for President Clinton’s bombing campaign against Slobodan Milosevic’s Serbia in the 1999 and President’s Obama’s air campaign against Muammar Gaddafi’s Libya in 2011.  Both the Trump White House and then presidential candidate Joe Biden similarly embraced this discretionary authority. Needless to say, this is quite the hunting license.

Drawing precise lines when it comes to war powers is never easy given America’s role in the world. And attempts to hamstring presidents are unlikely to succeed given both the Oval Office’s institutional capacity to take the initiative and the resources a commander in chief has on hand. Nevertheless, Congress still retains the whip hand of the budget to challenge excessive claims of presidential discretion. It’s a blunt tool, but it’s also the most likely effective tool if Congress wants to preserve its own constitutional role in this critical policy area.

Gary Schmitt is senior fellow in cultural, social and constitutional studies at the American Enterprise Institute.