It happens like clockwork, almost every year.
The president of the United States authorizes a military strike on some target in the Middle East, perhaps a Syrian government barracks or a Shiite militia position in Iraq. In short order, a sizable chunk of the U.S. Congress rises up in righteous indignation about the commander in chief bypassing the legislative branch in the process. Tersely worded press statements are issued, and a few bills may be filed in response. But in the end, the bills either die on the floor or get passed over by the leadership. A few months go by, and the cycle repeats itself.
Consider President Biden’s strike last week against a Shiite militia facility along the Iraqi-Syrian border. Coming in retaliation for a rocket attack in northern Iraq that injured several U.S. soldiers, the strike started the new cycle. The operation, which the White House claimed was well within the confines of the president’s Article II authority, was quickly condemned by a number of lawmakers from both parties. They say it’s just more evidence of a White House tendency to grab runaway war powers like a child grabs chocolate in a candy store. Like parents for the child, they say adult supervision is needed from Congress.
“There is absolutely no justification for a president to authorize a military strike that is not in self-defense against an imminent threat without congressional authorization,” Rep. Ro Khanna said in a press release. “What authority does [Biden] have to strike Syria?” Sen. Rand Paul asked.
In the eyes of these lawmakers and others, Biden is exhibiting the same disregard for Article I, Section 8 of the U.S. Constitution (otherwise known as the declare-war clause) as Presidents Trump and Obama before him. It doesn’t help matters that the Biden administration has yet to schedule a members-only briefing for the committees of jurisdiction —Sen. Chris Murphy, serving on the Foreign Relations Committee, was so troubled that he sneaked into a staff-only session to hear the administration’s legal explanation for the operation. He left the room disappointed about how inadequate that explanation was: “I didn’t hear anything today that convinced me that there was justification that I’d apply to any administration.”
Unfortunately, pretending the U.S. Constitution doesn’t exist has become an all too common habit for multiple administrations in the post-World War II era. It was President Richard Nixon’s decision to expand the Vietnam War into Cambodia in 1970, behind the backs of Congress, which compelled lawmakers to pass the 1973 War Powers Resolution over Nixon’s veto. That resolution sought to re-balance the power disparity between the executive and legislative branches on matters of war. But it hasn’t worked. Presidents and their lawyers in the Justice Department have adopted expansive views of what the War Powers Resolution means. All of them continue to describe the law as unconstitutional. And some have upended the meaning of the term “war” altogether, arguing that U.S. military engagements can only be considered war-like if large numbers of U.S. ground troops are deployed, the risk to U.S. forces is high, and the mission is long. In other words: War is only war if I, the president, consider it to be war.
To say this goes against what the letter of the Constitution would trivialize how concerned the framers were about presidents taking the country to war on their own whims.
As James Madison wrote to Thomas Jefferson in a letter on April 2, 1798, “The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.”
The framers believed that going to war, the most consequential choice a nation can make, should be a hard process — and that no individual, however powerful, smart, and honorable they may be, should have sole authority to start a war.
We have gotten far away from these founding constitutional principles. America will continue to drift further and further away from these principles until Congress actually exercises its afforded powers. Enough with the talking. Let’s see some action under law.
Daniel DePetris (@DanDePetris) is a contributor to the Washington Examiner’s Beltway Confidential blog. His opinions are his own.
