The President Is Not to Be Entrusted
With the Power to Declare War
Doug Bandow / The American Conservative
(February 16, 2023) — The U.S. has been constantly at war over the last two decades. Rather than go to the American people to justify new wars, however, successive presidents relied on past authorizations dating back to the 1991 Gulf War. Some of these enactments were flawed from the start. For instance, the George W. Bush administration backed its Iraq request with fake evidence of alleged Iraqi WMD programs.
Article 1, Section 8 is clear: Congress is supposed to declare war. The legislature’s consistent failure to do so is not a problem of institutional design or constitutional language. Rather, a mix of political ambition and cowardice have turned this fundamental requirement into a legal nullity.
residents want to make decisions unfettered by Congress. Control of the government allows the chief executive to manipulate circumstances. Command of the military allows him to order it into action, while generals obey the president absent extraordinary circumstances. Worst of all, legislators prefer to avoid responsibility, stepping aside when a president acts, applauding if the action goes well and carping if it does not.
Yet the Founders intended Congress to decide whether the U.S. goes to war. The president is not an elected dictator, leaving legislators with the singular task of noting when the U.S. is at war, as claimed by some. As commander-in-chief, the president is limited to managing any military action approved by Congress, as well as responding to a surprise attack.
The Constitution’s framers insisted that initiating hostilities requires an affirmative vote of both houses of Congress. The colonists consciously rejected the British model and refused to replicate the British monarchy. Alexander Hamilton, no shrinking violent when it came to executive power, insisted that the president’s authority was “in substance much inferior to” that of the king, who also made the decision for war.
Other founding solons agreed. George Mason observed that the president “is not safely to be entrusted with” essentially unreviewable, unaccountable warmaking power. Thus, the framers’ intention was “clogging rather than facilitating war.” James Madison explained that the “fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature.”
The new system, said James Wilson, “will not hurry us into war.” Rather, “It is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is in the legislature at large.”
Thomas Jefferson made the same argument in more colorful language: the Constitution provided an “effectual check to the dog of war by transferring the power of letting him loose.”
The nation’s founding document divides authority over the military, granting most powers to Congress. Wrote Justice Antonin Scalia: “Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the president under Article II.”
The lethality of war and reach of the U.S. military today only increase the need to limit executive warmaking. Hubris is a permanent human vice, but its dangers have been greatly inflated by presumptions of American exceptionalism, goodness, and perspicacity, the fatuous notion that those who have climbed to the top of the gargantuan Washington power structure somehow see further and thus are entitled to rule the globe and engage in unlimited international social engineering, unbothered by the consequences.
As Madeleine Albright told the world, Americans like her were entitled to decide that the deaths of a half million Iraqi children were a fair price to pay for the objective du jour in the U.S. capital.
Imagine how the Founders would have reacted to the claim of executive control. Observed Columbia law professor John Bassett Moore:
There can hardly be room for doubt that the framers of the Constitution when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory, and killing their soldiers and citizens, all according to his own notions of the fitness of things, as long as he refrained from calling his action war or persisted in calling it peace.
Time and again the Framers’ fears have been justified. Consider the results of the repeated military idiocies over the last two decades ordered by America’s political leaders. Uncle Sam has squandered some $8 trillion on constant combat.
The Watson Institute estimates that nearly a million people have died in a series of largely unnecessary conflicts. And this tally underestimates the number of dead in Iraq and ignores those killed in Yemen by the U.S. in league with Saudi Arabia and the United Arab Emirates.
To these figures must be added the maimed and wounded, those suffering from PTSD and service-related suicides, which amount to more than four times the number of Americans killed in action.
No surprise that presidents prefer not to have to make a public case for such interventions. President Barack Obama justified his foray back to Iraq based on the 2002 Authorization for Use of Military Force (AUMF). Even more astonishing, President Donald Trump pointed to the same document, which does not even mention Iran, as authority for the assassination of top Iranian official Qassem Soleimani.
Also malign have been the consequences of the 2001 AUMF in response to 9/11. According to the Quincy Institute’s Connor Echols: “This authorization has been used to justify continued interventions in Iraq, Syria, Somalia, and several other countries where al-Qaeda or ISIS militants are based.”
Administrations thereby turned narrow mandates into general warrants for war, for instance claiming that 9/11 justified strikes on terrorist organizations that had not existed in 2001 and today are enemies of al-Qaeda. If a future president decides to start another war in the Mideast—or perhaps even against Russia or China!—he likely will rely on the authority of one or more of these aged resolutions.
With White House support, a bipartisan group of legislators, including Rand Paul, Tim Kaine, Chris Coons, and Mike Lee in the Senate and Barbara Lee and Chip Roy in the House, has introduced legislationthat would repeal the AUMFs covering the 1991 Gulf War and 2003 Iraq invasion (but not 9/11). Explained Paul: “Endless war weakens our national security, robs this and future generations through skyrocketing debt, and creates more enemies to threaten us.”
However, Congress should do more than just rescind the 1991 and 2003 authorizations. The 9/11 legislation is more than two decades old and applied to a very different world. It should be repealed as well.
Senator Bernie Sanders of Vermont also is leading efforts to revoke the War Powers Resolution and end Washington’s support for Saudi/Emirati aggression against Yemen. In the name of fighting Iran the U.S. has underwritten far greater murder and mayhem—with hundreds of thousands of civilian casualties—than those committed by Tehran.
Presidential warmaking cannot be justified. The existing authorizations are outdated and cover current contingencies, if any, mostly by accident.
As for future threats, Congress should draft measures that specify any new groups or countries along with the claimed justifications for taking military action—and then debate the proposals. Let members of the House and Senate take a public stand and defend their vote. No more ducking their constitutional responsibilities by hiding behind the president.
Alas, because of, rather than despite, the disastrous results, opposition to revocation of past AUMFs remains strong, including from Senate Minority Leader Mitch McConnell. He complained that repealing AUMFs from two and three decades ago would “weaken the authorities that support our military’s presence and operations flexibility.”
Evidently he fears future presidents wouldn’t start enough wars if military action had to be justified to Congress and the public. His idea of “flexibility” has enabled a parade of presidents to wander the globe droning, bombing, invading, and occupying other nations to their collective hearts’ content. The results have been unjust and destructive.
Legislators should start by repealing old AUMFs, especially those being used to justify current conflicts. Next, members should approve a companion measure doing the same to presidential declarations of states of emergency.
After that, Congress should tighten the War Powers Resolution and create an expedited appropriations procedure to defund illegal conflicts. The ultimate objective should be that which was articulated by George Mason: to clog rather than facilitate war. Political ambition and congressional cowardice are no excuses for promiscuous presidential warmaking.
War is sometimes, but only rarely, necessary for America. Military action should be a last resort and require interests of the most serious nature to justify. As the nation’s Founders understood, the decision for war was too important to leave to the discretion of the president. Congressional assent should be required, giving the American people an opportunity to join the debate.
Doug Bandow is a Senior Fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is author of Foreign Follies: America’s New Global Empire.
Posted in accordance with Title 17, Section 107, US Code, for noncommercial, educational purposes.
