- - Tuesday, April 6, 2021

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America. Click HERE to read the series.

With the possibility of a more interventionist foreign policy approach looming, questions will inevitably resume over which branch of government actually is responsible — Congress or the president — for sending U.S. troops abroad. Admittedly, our political culture tends to take the executive branch to task over armed entanglements, though it is Congress that possesses the legal authority “to declare war” per Article I of the Constitution.

As President Biden faces the challenges posed by China, Iran, North Korea and Russia, it is worth examining the “war powers” wielded by the executive — pursuant to both Article II and related legislation — and whether the current limitations on the executive make us genuinely safer.

They do not.

Under Article II of the Constitution, the president is identified as “Commander in Chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.” This clause has remained perpetually at odds with Congress’ Article I power to “declare war” and with legislation known as the War Powers Resolution.

Passed in 1973, the War Powers Resolution was a heated congressional response to President Nixon’s machinations in Vietnam, Laos and Cambodia. As a mechanism designed to cabin unilateral military action on the part of the president, the substance of the resolution is fairly straightforward: The president must notify Congress within 48 hours if he has introduced troops into new hostilities, new territories or in a “substantial enlargement” of previously existing force levels.

Furthermore, the president must terminate the use of U.S. forces within 60 days if Congress does not declare war, offer an extension, or otherwise authorize the use of such force. The president may escape this requirement in the event of an armed attack on the United States.

This system is dysfunctional because the War Powers legislation does not accurately reflect reality. Recent presidents, from Bill Clinton to George W. Bush to Barack Obama, have largely ignored the resolution prior to engaging military forces. They have opted to provide updates, rather than ask for permission — as was the case with American involvement in the late 1990s Serbian conflict under Mr. Clinton — or to collapse the distinction between conflicts, so that prior approval granted to one conflict may then apply to another, as continues to be the case with the post-9/11 Authorization for Use of Military Force (AUMF).

But beyond the charade-like quality the resolution has assumed, it carries real national security consequences. At its most basic level, the resolution removes flexibility that presidents require in times of national crisis. While the fabled film “Dr. Strangelove” provides a dose of dark humor, it also highlights the degree to which a nuclear crisis can quickly unfold. Even abstracted from the massive polarization that plagues our legislative branch, Congress cannot be relied upon to act as swiftly and cohesively as such a situation would demand given the 535 opinions in play.

Such limitations also hamstring a president at the outset of a conflict if he knows he must produce “results” for Congress extremely quickly or risk losing authorization. Some attribute in part the tragic 1983 Marine barracks bombing in Lebanon to President Reagan’s limited ability to exert force because of the resolution.

Furthermore, by setting a finite limit on the amount of time that a president may maintain a troop presence in a certain region of the world, the resolution creates an understandable loophole for the enemy, which might rightly believe that if they “hold out” for two months, Congress may effectively terminate the deployment by cutting off funds for it.

In short, it’s a good thing that the resolution isn’t actually observed, or it would assign a level of predictability to our national security responses that would corrupt our capacity for conventional deterrence.

It’s time that our legislation accurately reflect what occurs and what Americans (rightly) understand about the president’s power to engage U.S. troops in conflict. Since wars are no longer “declared,” (given that Congress last declared war in 1942), congressional power in this area has dwindled.

The War Powers Resolution represented a ham-fisted grasp for some semblance of congressional control during the Nixon presidency, Watergate and the Vietnam War. But instead of making Americans safer, it makes military engagement a strange tip-toe — resulting in legal fictions, such as the AUMF — and signals to our enemies that there is always the risk of congressional interference, especially if a president is despised enough domestically, a scenario not very difficult to envision given the current political climate.

It is long past time for the repeal of the War Powers Resolution. It is unnecessary, makes us weaker and confuses the roles of the executive and Congress.

David S. Jonas is a partner at FH+H Law Firm in Tysons, Virginia. After retiring as a Marine Corps officer, he served as general counsel of two federal agencies. He teaches as an adjunct professor at Georgetown University Law Center and the George Washington University Law School. Erielle Davidson is a senior policy analyst at the Jewish Institute for National Security of America (JINSA) in Washington. 

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