War Powers Catch-22
They have a right to do anything we can't stop them from doing.
The Senate voted yesterday on a measure to invoke the War Powers Resolution to end the ongoing operation in Iran. It failed 47-53, with John Fetterman (D, PA) and Rand Paul (R, KY) the only Senators to cross party lines. Some of the Democrats who voted to stop the war are nonetheless not ruling out voting for a $50 billion supplemental spending bill to support the war effort. Because, after all, we’re at war.
And so it goes.
This war is, so far at least, unpopular. Some 59 percent of Americans disapprove of the war, according to three recent polls. But it would be political suicide to vote against giving the men and women fighting it the tools they need to do so.
And that’s really the only leverage Congress has here.
While the Constitution explicitly reserves the power to send the country to war to the legislative branch, it also makes the President the commander-in-chief of the armed forces. As the legal scholar Edward S. Corwin famously put it, “The Constitution is an invitation to struggle for the privilege of directing American foreign policy.”
For most of our history, Congress held the upper hand. In peacetime, the army was a mere cadre force and the navy was relatively small. To go to war, the President needed to go to Congress for authority and funding to raise a force capable to fighting. That changed with the Cold War.
Since 1950, Congress has seen fit to maintain a very large, robust standing military ready to, as the Marines put it, “Fight tonight.” Which means that the President, as commander-in-chief, has first mover advantage. He can simply order the forces at his disposal to war and force Congress to react.
In 1973, as American involvement in the Vietnam War was winding down, Congress tried to reclaim its authority. It passed the War Powers Resolution over President Richard Nixon’s veto. It declared that American forces must be sent into harm’s way “only pursuant to (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.”
The Resolution also demands that the President cease hostilities if Congress hasn’t explicitly authorized them within 90 days or if, as was attempted yesterday, Congress passes a concurrent resolution demanding that hostilities cease. Not only have those provisions also been roundly ignored, but most legal scholars believe the latter to amount to a legislative veto, which the Supreme Court ruled unconstitutional in INS v. Chadha (1978).
The fact of the matter is that Congress has no practical way to preserve its Constitutional prerogative with respect to the war power. The President can, with no consultation whatsoever, send the 5th Fleet or the 82nd Airborne wherever he wishes to do practically anything he deems in the national interest. Indeed, he can order the launch of our nuclear arsenal at any target he chooses.
With respect to a conventional fight, Congress could, theoretically, withhold funding. But, as we saw during the ostensible government shutdown last fall, the President has the ability to spend a lot of money even without Congress. And, as noted at the outset, even opposition party Members who oppose the war are quite reluctant to cast a vote that can be portrayed as against “our troops.”
Indeed, this has been a longstanding issue. President Teddy Roosevelt boasted about this impunity in his 1913 autobiography. With regard to building the Panama Canal, he quipped, “I took the Canal Zone and let Congress debate, and while the debate goes on the canal does also.” More famously, he resolved a dispute over sending the fleet around the world by declaring that he “had enough money to take the fleet around to the Pacific anyhow, that the fleet would certainly go, and that if Congress did not choose to appropriate enough money to get the fleet back, why, it would stay in the Pacific. There was no further difficulty about the money.” He understood that, while Congress theoretically has the power to thwart the President on national security policy, it is often politically unfeasible for it to do so.
The House could, theoretically, impeach him afterward. While it has never happened, it’s at least theoretically possible that enough Senators from the President’s party would vote to remove him from office. But I can’t imagine that happening while our forces are in harm’s way.
This is a great illustration of how the Constitution does not function in a 21st century (or even 20th century) environment in any way similar to the late 18th century enviroment in which it was conceived.
This is also another great example of the problems with presidentialism. If we had a parliamentary system, then, by definition, the executive would have to have majority support in the legislature.
From a democratic point of view, the advantage is obvious: heading into an election, a parliament would not vote to go to war of choice with so little public support.
A president, especially a lame duck, has less reason to care about public opinion.