• Allon Advocacy

A History of War Powers

According to historian Michael Beschloss, President Harry S. Truman's decision to avert congressional approval for the Korean War created a precedent that presidents from both parties have used to justify ordering military action unilaterally.

The universe can be a curious thing. To wit: I was in the middle of reading Presidents of War by Michael Beschloss when news hit that President Donald Trump had ordered the killing of Iranian Major General Soleimani. The book, according to one reviewer, is “a deep history of how chief executives since the early nineteenth century have waged war.” Another, less benign review, said the book explains presidents’ from across the political spectrum “recurring defiance of the constitutional requirement to seek congressional approval for making war.”

Article 1, Section 8 of the U.S. Constitution provides, “Congress shall have power to … provide for the common defense and general welfare of the United States.” Sounds like that latter review of Beschloss’ book is right on the mark, right?

But not so fast: Democrats, Republicans, and, in the early days of U.S. history, even a Democratic-Republican (President James Monroe) have maneuvered around Congress in their efforts to execute American defense policy abroad.

As New York Times reporter Charlie Savage—who himself has written two books on presidential war powers and has won a Pulitzer Prize for his reporting on the subject—said this week, “Congress’s control over decisions about going to war has been eroding for generations, and administrations of both parties have established precedents that undercut … a meaningful check on presidential war-making authority.” (For his part, in Presidents of War, Beschloss argues the Founders “would probably be thunderstruck” by how little input Congress has today in the decision to wage war.)

Indeed, the last time Congress actually declared war was in 1941 and 1942, when it approved six resolutions over that span allowing war against Japan, Germany, Italy, Bulgaria, Hungary, and Romania. Including those six votes, Congress has voted to declare war only 11 times throughout U.S. history. The other five votes were in: 1812, against Great Britain; in 1846, against Mexico; 1898, against Spain; and, in 1917, two resolutions declaring war against Germany and Austria-Hungary during World War I. (At least one of these votes may require an asterisk. Ulysses S. Grant, who served as an Army Lieutenant during the Mexican-American War, claimed in his post-presidential memoirs that President Polk deliberately ordered the American military to provoke Mexico to bully lawmakers into declaring war against our southern neighbors.)

The founders, according to the U.S. House of Representatives’ website, wanted Congress to retain war powers for very specific reasons. Noting that Article 1, Section 8 was “revolutionary in its design” and was “a clear break from the past,” House historians say the decision was rooted in the framers’ desire to not “concentrate too much influence in the hands of too few.”

In the 69th installation of The Federalist Papers, Alexander Hamilton explained the departure from history. He wrote, “The President is to be Commander and Chief of the Army and Navy of the United States. In this respect his authority would be nominally the same as that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the land and naval forces … while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies.” “All of which,” Hamilton says, the U.S. Constitution would instead give to Congress.

Today, the executive branch relies on congressional authorizations for the use of military force (AUMFs) to declare war or to allow military action. According to House historians, AUMFs generally are “narrower in scope” than a war declaration and are “much more limited.”

As Beschloss explains, the shift to AUMFs started in 1950 with President Harry Truman when he was facing a tough midterm congressional election cycle. In an NPR interview, Beschloss explained that, while he “loves” President Truman, the president “did a terrible thing in 1950.” After North Korea attacked South Korea that June, President Truman “should have gone to Congress” seeking a war resolution. But, Beschloss says, “Truman was terrified that there’d be a big debate where he might be criticized and it might undermine him in the midterm elections of 1950.”

So instead President Truman justified the United States’ engagement in the Korean peninsula as a “police action” allowable under United Nations rules. The United Nations was at this point only five years old; Truman’s reliance on his authority to command forces under the auspices of UN direction both stirred a debate on Capitol Hill regarding the constitutionality of American participation in the UN and created a precedent that saw significantly more military authority vested in the Commander in Chief.

“The result of” Truman’s actions, Beschloss says, was that in 1964 when President Lyndon Johnson wanted to engage in Vietnam, his argument was “Truman didn’t ask Congress” so “I don’t have to do it, either.” Congress acquiesced, eventually passing the Gulf of Tonkin Resolution, which allowed President Johnson “to promote the maintenance of international peace and security in southeast Asia.”

As Beschloss’ NPR interviewer Steve Inskeep noted, “we’ve never had a declaration of war since.”

While that is true, after Korea and Vietnam, Congress did try to reassert its power. In 1973, members of the U.S. Senate Foreign Relations wrote, “Prolonged engagement in undeclared, Presidential war has created a most dangerous imbalance in our Constitutional system of checks and balances.” That year, Senate lawmakers passed The War Powers Resolution on a bipartisan 75-18 vote (the House vote was 284 to 135), overriding a veto from President Richard Nixon.

The War Powers Resolution outlines three situations in which a president can order the use of military force. Those circumstances are if: Congress already has declared war; Congress has provided “specific statutory authorization”; or there is a national emergency due to an attack or an imminent attack on the United States, U.S. territories or possessions, or U.S. armed forces.

As The History Channel explains, the law “also sets down reporting requirements for the chief executive, including the responsibility to notify Congress within 48 hours whenever military forces are introduced into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” The War Powers Resolution also says the president must “end foreign military actions after 60 days unless Congress provides a declaration of war or an authorization for the operation to continue.”

The History Channel outlines three instances where presidents—both Republican and Democrat—have skirted the War Powers Resolution:

  • In 1981, when President Ronald Reagan deployed military personnel to El Salvador without consulting or submitting a report to Congress;

  • In 1999, when President Bill Clinton continued bombing in Kosovo beyond the 60-day window outlined in the statute; and

  • In 2011, when President Barack Obama initiated military action in Libya without congressional authorization.

President Trump says the United States’ action against Soleimani is justified under the AUMF that Congress passed in the wake of the Sept. 11, 2001 terrorist attacks. As Voice of America explains, “unlike other authorizations for conflict that allow for hostilities against specific nations or unnamed nations in specific areas,” the 2001 AUMF “allows for actions against organizations or persons.” (Voice of America notes President George W. Bush and President Obama both used the 2001 AUMF’s “broad definitions of a terrorist threat to justify military actions internationally.”)

Democrats disagree with President Trump’s interpretation. As a result, Speaker Nancy Pelosi (D-Calif.) has said she will ask House lawmakers to vote this week on a resolution offered by Rep. Elissa Slotkin (D-Mich.), a former Central Intelligence Agency and Defense Department operative, which would require action against Iran stop unless Congress votes to expressly authorize it. But many Republicans – and even some Democrats – have expressed concern about tying a president’s hands during military emergencies.

Will Speaker Pelosi be successful where other congressional leaders over the last 70 years have not? Will Congress be able to take back the power to declare, or end, war?

That remains to be seen, but what we know now is that, despite a bipartisan history of presidents’ asserting their power to make war, and lawmakers trying to take it back, this debate will deepen the already huge political chasm we have in Washington today.

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