Why Congress is not serious about the war powers in the Constitution
Both the House and Senate resolutions to prohibit military attacks on Iran have little chance of restricting the ability of the executive branch to do so. While the House resolution is designed to trigger the authority of the decades old War Powers Act, the executive branch will certainly ignore it, while the Senate resolution will certainly be killed by a presidential veto. This is all kabuki theatre. On war powers, the Constitution is now a dead letter, and the United States is no longer a republic but an imperial power.
This sad reality could not have been made more clear when the defense secretary scolded lawmakers for considering a debate on war powers. The Constitution is simply an annoyance to members of the military industrial complex. Archaic documents, we are implicitly told, should not dictate critical national security policy that calls for decisive action and dispatch. The problem is not that the Constitution is vague about war powers. The problem is that the executive branch actively chooses to ignore it because it is inconvenient, while Congress acquiesces because lawmakers want no part of the very tricky business of war or in accepting blame for mistakes.
The Framers were clear in their intent to grant the power to initiate war with the legislative branch. The power to start a war cannot be given to the president, James Madison said, because “the trust and the temptation would be too great for any one man,” and “war is in fact the true nurse of executive aggrandizement.” As commander in chief, the president may legally act without Congress to defend against an attack on the United States, but mounting offensive operations requires legislative approval.
Even in cases of limited war, the Constitution contains the little known marque and reprisal clause that requires limited military actions taken by the government or private citizens to be approved by Congress. Thomas Jefferson explained that even lower level hostilities must have legislative approval because “the making of a reprisal is a very serious thing” that is “considered an act of war and never failed to produce it in the case of a nation able to make war.” Because of the potential consequences of killing a military leader of an adversary nation, even limited acts of war require legislative sanction because they very well could become bigger wars.
For the military industrial complex, including its branch in Congress, these requirements are inconvenient. So what? The Constitution is designed to increase inefficiency for the sake of liberty. No one wants to give a known criminal an expensive laborious trial and extend a variety of due process protections, but this is what is necessary in our freedom loving republic.
The intent of the Framers on war powers places many Republicans in an odd position. Many are originalists when it comes to abortion, the Second Amendment, the death penalty, and a host of other issues. When it comes to war powers, however, they see “penumbras” and other “emanations” that refract thel intent of the Framers. After all, they say, the world has changed, and war can come in an instant. Regarding war powers, many conservatives see the Constitution the way progressives do as obsolete.
Democrats are no better. The House resolution seems motivated not by a genuine desire to reclaim the war powers, but by the political obsession with doing the opposite of what the president wants. If he declared the Big Mac the official hamburger of the country, Democrats would rush to the House Rules Committee with a resolution supporting the Whopper instead. We are living in serious times, but these are not serious people. The House could have reasserted itself by repealing or rewriting the 2001 and 2002 authorizations for use of military force. This would have signaled that lawmakers take their responsibility in the Constitution seriously, but still they have done nothing, and they will continue to do nothing on this.
The problem is not a lack of clarity in on war and peace. The problem is the Framers assumed that we would have, as Madison said, “temperate leaders” who would not allow the “tyranny of their own passions” to drive foreign policy. When American leaders do not wish to exercise their own granted authority, then the Constitution is simply a piece of parchment.
William Smith is a research fellow and the managing director at the Center for the Study of Statesmanship based at the Catholic University of America.
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