U.S. War Powers
The U.S. Constitution gives Congress the exclusive power to declare war. The last time Congress did so was 1942, before U.S. troops fought in Korea, Vietnam, Iraq (three times) and Afghanistan, before U.S. invasions ousted governments in Grenada and Panama, before U.S. Marines landed in Haiti and Lebanon, before U.S. bombs pummeled Libya, Serbia, Somalia and Syria. In fact, undeclared military actions commenced almost as soon as the Constitution’s ink dried. The Congressional Research Service lists hundreds of uses of the U.S. armed services abroad starting in 1798, only 11 of which were in declared wars. These days presidents cite unconventional threats and the need for flexibility and speed to deploy military force, sometimes with congressional approval, sometimes without. In practice, presidents usually get their way, and the process often revolves around political power as much as legal considerations.
The role of U.S. forces in the battle against the militant group Islamic State in Iraq and Syria has produced a simmering debate over the authorization of military force. In February 2015, six months after the U.S. began air strikes against Islamic State, President Barack Obama formally asked Congress to approve operations against the group. His request would have limited the authorization to three years and prohibited “enduring offensive ground combat operations.” Divisions within and between the Democratic and Republican parties have scuttled efforts to pass a bill through Congress. In the meantime, the role of U.S. personnel on the ground has grown. A new authorization would offer Congress a chance to influence war policy but also would mean co-owning a military campaign with uncertain prospects. In November 2016, a federal judge dismissed a lawsuit by a U.S. Army captain who challenged the legal basis of the campaign against Islamic State in the absence of congressional authorization. The judge said it was up to the elected branches of government to determine whether the fighting was properly authorized. Even as Obama administration officials sought Congress’s okay, they cited as sufficient the body’s approval for action against Iraq in 2002 and its 2001 authorization for military force against entities responsible for the Sept. 11 attacks. In November, U.S. officials expanded the legal scope of the latter to include military action against the Shabab, a militant Islamist group in Somalia, according to the New York Times.
In parliamentary democracies, control over war powers is usually vested in the head of government and his or her cabinet; in authoritarian regimes it resides with the ruler. Under the U.S. system, Congress holds the power to declare war, but the president, as commander in chief, has the power to wage war. Congress has long recognized the president’s authority to conduct short-term military actions in emergencies and to defend the country. Tensions over the undeclared Vietnam War, however, resulted in the War Powers Resolution of 1973, passed over President Richard Nixon’s veto. The act requires a president who introduces U.S. forces into a conflict to notify Congress, which can authorize the deployment within 60 or 90 days or else the forces must be withdrawn. No president has recognized the act’s legal validity, although each has made some effort to comply with it. Members of Congress have brought at least eight lawsuits — none of them successful — claiming violations of the law, most recently challenging the legality of the 2011 airstrikes on Libya.
Given the penchant of presidents to ignore the spirit if not the letter of the War Powers Resolution, some in Congress favor an overhaul of the four-decade-old law. A bipartisan bill introduced in 2014 would repeal it and create a joint congressional committee that would consult closely with the president about military operations. This would reduce conflicts over war powers. It would give the president greater freedom to respond to military threats, for better or worse. Forgoing a debate and vote by the full Congress could make it harder to argue that the use of force had the country’s support. It would also reduce accountability for lawmakers, who otherwise would have to defend their clearly stated position.
The Reference Shelf
- Article I, Section 8 of the U.S. Constitution gives Congress the power to declare war. Here are notes from the Federal Convention of 1787 on the debate over it. Article II, Section 2 makes the president commander in chief.
- The Congressional Research Service listed 182 uses of U.S. armed forces abroad from 1798 to 2014 “for other than normal peacetime purposes.”
- Text of the 11 U.S. declarations of war.
- The Library of Congress has discussion and references on the 1973 War Powers Act.
- A 2013 Hoover Institution study proposed a new statutory framework for using force against terrorism.
- Bloomberg News reported on President Obama’s 2013 speech on the limits of Congress’s authorization to use force to fight terrorism.
David Lerman contributed to the original version of this article.
First published Sept. 10, 2014
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