Congress Has No Excuse to Ignore its Duty to Decide When Americans Go to War
On February 28th, President Trump launched Operation Epic Fury, the strike campaign against Iran that could come to define his second term. As of the time of writing, the operation has killed 13 Americans, wounded at least 380 more, expended years of munitions procurement, left the world’s most important oil transit chokepoint under greater threat than before the conflict began, and cost Americans at least $10 billion more at the pump in March alone.
At no point has Congress authorized or restricted the President’s decision to use force, despite its far-reaching consequences for Americans. In fact, for several weeks during the conflict, Congress was in recess. Presidents should not take the nation to war without legislative approval to begin with, but since Congress has regularly failed its Constitutional duty in national security, no one should be surprised. At their best, free and open societies can benefit from robust debate about major strategic decisions. When this process is respected, unwise policy choices are subject to scrutiny and less likely to be adopted. Similarly, courses of action vital to the national interest are more likely to have the support needed to sustain the sacrifices they may require. Unilateral Presidential warmaking abandons the strategic benefits of deliberative policymaking and increases the risk of U.S. blood and treasure being sacrificed in unwise conflicts. Righting this ship is up to Congress. Legislators have ample opportunity to level the playing field. The War Powers Resolution (WPR) of 1973 is Congress’ main legislative tool for restraining executive war-making, but it has regularly failed to do so in practice. The WPR needs a comprehensive overhaul that better positions legislators to insist on the debate and oversight of war decisions that our Founders intended.
More fundamentally, legislative changes can only make Congress relevant in our nation’s decisions to make war if legislators want to be. To play their proper role, legislators need to be more interested in policymaking and set rules that give individual Members a greater influence in the legislative process. Achieving the consolation prize of playing a “prominent role in the theater of our national politics” is not the same thing as building and wielding power as a co-equal branch of government.
Troubling Trends
Congress’ irrelevancy in the Iran War is only the latest reflection of prior bipartisan precedent. In 2011, Congress did nothing to either authorize or curtail President Obama’s air campaign in Libya. Operational Odyssey Dawn would ultimately contribute to the death of Muammar Gaddafi, unleash a civil war, and damage U.S. non-proliferation interests through the lesson it taught nuclear aspirants about the risks of voluntary disarmament. Legislators again took no action when President Obama deployed U.S. special forces to Syria without Congressional authorization, which continued under both Presidents Trump and Biden.
The Iran conflict builds on these and earlier precedents as one of the largest-scale U.S. military operations conducted without Congressional approval since the Korean War, comparable only to Operation Allied Force in 1999. The formidable economic costs and strategic fallout of an open-ended military campaign implicating the Strait of Hormuz should not have been the prerogative of any President to commit Americans to without a robust Congressional debate and vote. Nowadays, growing economic constraints make Congress’ involvement in national security decisions even more vital. A United States with a growing debt-to-GDP ratio last seen in the 1940s literally cannot afford Congressional detachment from decisions about when the country assumes the costs of war. On the 250th anniversary of America’s independence, Congress’ departure from our Founders’ view of their imperative role in war decisions should be alarming.
How Founders Understood Congress and War
America’s most influential early statesmen shared the understanding that Article I, Sec. 8 of the Constitution gave Congress the power to declare war. The Framers deliberately chose to depart from the legacy of European monarchs’ arbitrary powers to initiate war.
James Madison, the de facto father of the Constitution, wrote in 1793 while debating Presidential power with Alexander Hamilton, that “in no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”
Even Hamilton himself agreed on the premise of war decisions coming from Congress. Writing in Federalist 69, Hamilton argued that, in contrast to a monarch, the President is only “first General and Admiral” while the “Declaring of war” and “raising and regulating of fleets and armies” all “would appertain to the Legislature.”
The Founders made legislative, not executive control, over initiating conflict a core feature of our republic because Congress was closest to those who would bear the costs of war. In 1798, Madison wrote to Thomas Jefferson that “the constitution supposes, what the History of all Governments demonstrates, that 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 to the Legislature.”
Even when early Presidents initiated military action without a declaration of war, they sought and gained Congressional authorizations for use of military force, such as during the “quasi-war” with France, and in the first and second Barbary wars.
Since World War II, Congress has increasingly struggled to maintain its traditional role in initiating war amid the United States’ growing commitments abroad. President Harry Truman’s 1950 decision to enter the Korean War based on a United Nations Security Council Resolution, rather than any Congressional authorization, was a decisive break from prior practice.
Congress’ main statutory tool for exercising its Article I national security powers emerged at a high tide of post-war skepticism of Executive power. The 1973 War Powers Resolution (WPR) passed amid anger over the Nixon Administration’s emerging Watergate scandal and revelations about its secret, unauthorized bombing campaign in Cambodia. In the years since, the law has largely failed to reinvigorate Congress and has been regularly misinterpreted – it now requires serious reform.
The Flawed, Misunderstood War Powers Resolution
The WPR requires the President to notify Congress within 48 hours of deploying troops into hostile or imminently hostile situations. If U.S. forces are introduced into hostilities, the WPR requires the President to attain Congressional authorization within 60 – 90 days.
Crucially, however, the WPR never defines “hostilities” anywhere in its text. As a result of this glaring omission, Presidents have understandably interpreted “hostilities” as broadly as possible for decades. In 2011, the Obama Administration argued that months-long U.S. operations in Libya did not qualify as “hostilities,” a patently absurd claim, and that Congressional authorization was not required as a result. In 1983, the Reagan Administration adopted a similar attitude toward the invasion of Grenada. In addition to the law’s poor drafting, many legislators, even those skeptical of executive overreach, misinterpret the War Powers Resolution as giving the President a 60 to 90 day “free pass” to use military force abroad, before Congressional authorization is required. This fundamentally misreads the law and the nature of Presidents’ Article II authority.
The WPR’s “Purpose and Policy” section, the basis for interpreting the rest of its text, clearly outlines limits on the President’s power to send U.S. troops into harm’s way. The circumstances are: “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
In other words, the War Powers Resolution was not intended to provide a Presidential blank check to initiate any military campaign they could wrap up within two to three months. The statute only enables unilateral executive action to repel actual or imminent attacks on U.S. forces. Members of Congress and their defense staffers need to recalibrate how they read this law and re-envision their institution’s role.
Commander-in-Chief Authority Properly Understood
The WPR’s restraints on Presidential authority to unilaterally use force reflect historical views of Article II Commander-in-Chief powers. During the Constitutional Convention, the prevailing understanding of Congress’ power to declare war was that it narrowly left the “Executive with the power to repel sudden attacks.”
The Supreme Court reaffirmed this principle in the 1863 Prize Cases. The Court upheld President Lincoln’s blockade of southern ports after the attack on Fort Sumter without Congressional authorization at the time. The opinion argued that a President subject to a “foreign invader, or States organized in rebellion” was empowered to “resist force by force.” The key is that while Presidential power to initiate unauthorized force exists, it is defensive and limited. It is Congress’ role to authorize starting a new conflict or expanding an initial defensive use of force during an emergency to a prolonged campaign.
In the face of the WPR’s textual issues, widespread misinterpretation, and increasing irrelevance to U.S. foreign policy decisions, the law needs a major overhaul to have the impact its drafters intended.
Improving the War Powers Resolution
First, the War Powers Resolution needs to define key terms like “hostilities,” which are the basis for its ability to restrict the executive. Plainly clarifying that hostilities constitute armed conflict or the use of lethal force would better align the letter of the War Powers Resolution with its spirit, removing opportunities for White Houses to substitute an overbroad interpretation.
Second, the WPR should include affirmative requirements for how Congressional Authorizations for the Use of Military Force (AUMFs) are written.
The Supreme Court has recognized Congress’ Article I warmaking authorities to extend to authorizing “limited war” in addition to declaring “general war” since 1800. Yet when AUMFs are written with few practical constraints, such as naming geography, adversaries, or duration, they can too easily turn into blank checks. At their broadest, poorly-written AUMFs offer the Executive legal sanction to sideline Congress in future decisions about military force, actively subverting the Constitutional order our Founders envisioned.
The 2001 AUMF, for example, which passed in the aftermath of the 9/11 attacks, specified no geography, specific groups, nor duration. 25 years later, the Authorization is still active. Though intended to target the perpetrators of the 9/11 attacks and those responsible for harboring them (al-Qaeda and the Taliban), the 2001 AUMF has now been invoked in at least 22 countries. The Authorization was and is clearly stretched far beyond the intent of those who voted on it, less than ten percent of whom remain in office.
An updated War Powers Resolution should require new AUMFs to name geographic scope, identify groups or states they target, and automatically sunset absent a Congressional extension vote. When Presidents seek to change the scope of conflicts beyond what is already authorized, they should be required to make a case to Congress to vote to alter existing AUMFs or add new ones.
Lastly, any updated War Powers Resolution should revitalize the power of the purse by making inertia work for Congress. The WPR should automatically cut funding for operations that do not receive Congressional authorization within a required window. This way, the burden will be on the Executive to explain why a military operation is necessary and win support for it. The alternative of Congress having to overcome a collective action problem when it disagrees with continuing a war already in progress massively undermines the practical check the legislature can impose in practice. Taken together, these details can drive the oversight and accompanying strategic debate that our troops and taxpayers deserve to ensure that our limited defense resources are put to their best strategic use.
When a genuine national security emergency is at hand, inertia will not prevent legislators from acting. Congress has rapidly passed AUMFs when the stakes were clear, as it did after September 11th, 2001. Uses of force that are not self-evidently necessary or wise enough for Congress to immediately authorize should warrant more debate anyway to ensure they represent the right path for the country.
It’s Not Just the Law, It’s the Institution
At a deeper level, Congress can only capitalize on these policy changes to reassert its role in warmaking if it re-embraces being a co-equal branch of government and allows individual Members to matter more within the institution. The legislative branch’s weakening has been widely noticed for decades. There are no easy solutions, but no analysis of Congress’ decaying role in war powers can ignore the elephant in the room that is its institutional decline.
Partly, the issue is cultural. Amid a more nationalized politics, too many Members see their role as a kind of partisan performance art rather than a means to exercising real power. At the same time, Congress’ own operating norms in recent decades have made most legislators and their individual preferences much more irrelevant to debating and shaping legislation. Party leadership has far greater influence than it once did over what legislation reaches the floor than in prior eras, and opportunities for amendments are limited.
Members of Congress would be better equipped to insist on a meaningful role in matters of war and peace if their institution gave individual legislators more opportunities to matter. Both Chambers can cultivate the agency and expertise in their Members that Congress needs to function as a co-equal branch by returning to their traditional operating model of “regular order.” Under this system, committee chairs, rather than party leadership, have more power to shape legislation and influence what reaches the floor. This system, in place for most of the 20th century, offers ambitious Members more outlets for meaningfully exercising the powers our Founders assumed they would jealously pursue. In the meantime, until Congress wants to matter and starts to act as it does, U.S. defense policy will suffer for it.
Congress’ Most Important Duty Should Not Be Its Least Attended
Congress is hardly immune to poor strategic thinking. Its role in deciding on war is no substitute for coherent, disciplined defense paradigms. The bet our system makes, however, is that a robust marketplace of ideas is a superior method for arriving at wise strategy. The President can be an important voice in those discussions, but adversarial scrutiny is the whetstone that sharpens ideas.
One of the most important votes a member of Congress can take is deciding whether to send U.S. troops into harm’s way. Though U.S. service members dare to put themselves at risk for the country, legislators routinely lack the courage to vote on whether to ask them to do so. When Congress abandons its most solemn responsibility, it warps the nature of our republic and raises the likelihood of worse strategic choices in the process. Congress’ constituents and the men and women in uniform willing to sacrifice for them deserve better.
By overhauling the War Powers Resolution, legislators can make their constitutional role in decisions about war and peace matter once again. Just as important as policy fixes, Congress itself must rediscover how to be a meaningfully powerful institution, not simply a platform for commentary. Setting rules that incentivize ambitious legislators to seek opportunities to impact policy offers a pathway for reclaiming Congress’ essential role in questions of war and peace.
Views expressed are the author’s own and do not represent the views of GSSR, Georgetown University, or any other entity. Image Credit: The White House
