The Constitution Is More Than Just an Obstacle To Fighting ISIL
President Obama doesn't want to ask Congress to declare a war. Congress doesn't seem interested in fighting back. But the law demands otherwise. By Garrett Epps
Congress seems to be on track to authorize President Obama to address the situation in the Middle East. Strikingly enough, however, it is authorization for one small part of it—to provide arms to Syrian rebels. Currently, U.S. law prevents the president from transferring weapons to rebel groups, and Obama wants an exception for Syria.
What about the prolonged campaign he announced last week to “degrade, and ultimately destroy, ISIL through a comprehensive and sustained counterterrorism strategy?” Obama’s strategy—systematic airstrikes against ISIS targets “wherever they are”; material support to Iraqi, Kurdish, and Syrian forces fighting ISIS on the ground; intelligence and counterterrorism campaigns against ISIS; and humanitarian assistance to those displaced by the fighting—sounds like what I will call, for lack of a better term, “war.”
And war needs authorization from Congress. Not little dribs and drabs of authorization, and not small measures tucked onto spending bills, but a resolution, adopted after a serious debate, authorizing the whole thing, setting out our war aims, and indicating when or how the authority will expire.
The president says he has the authority to do what he wants but wouldn’t mind if Congress wants to tag along by voting him “more” authority. Members of Congress say, variously, Why is he asking us? Why isn’t he already doing more without it? Can’t we wait to see what happens? Can we go now?
This potentially momentous turn in American history presents the usual spectacle of fecklessness that has characterized the war-powers dialogue at least since the Korean War. It is clear that both the Executive Branch and Congress currently regard the Constitution in this area as an obstacle to be finessed.
What if we thought about it differently? What if we looked at the Constitution as a guide to making better decisions?
Let’s review what the Constitution says on the issue of war and peace. Under Article I, Section 8, Congress has power not only to “declare war,” meaning to change our status on the international plane. It also has the power to “grant Letters of Marque and Reprisal,” which means to allow private persons—the 18th-century equivalent of military contractors—to carry out what seem a lot like covert operations at sea; “to raise and support armies” and “to provide and maintain a navy”; “to make rules for the government and regulation of the land and naval forces,” and “to provide for calling forth the militia.” In Article II, the Senate is given the power to advise and consent to the appointment of any military officer.
Can anybody think of an important war power not included in that catalogue? There’s only one: the power to designate a commander in chief. Out of that single power, presidents over the decades have spun the elaborate pretense that they can decide on the use of force abroad, “consulting” Congress when they choose.
It ain’t so. Basically, when the president wants to use the military for anything except immediate defense of the nation, he needs to ask. Asking for authorization step by step is not enough. Any major change in our military posture requires congressional authorization.
Why would the Framers have set the Constitution up that way? Was it because they wanted to prevent executive use of force whenever possible? There’s some evidence to support that view. (Madison said at the Philadelphia Convention that “he was for clogging rather than facilitating war.”) University of Kentucky Professor George C. Herring, in his magisterial history of American foreign policy, points out that small-r republican theory convinced many of the Founders—including both Jefferson and Madison—that a republic had little need for a strong military because America would get its way by using economic sanctions. If you believed that, then you would want to make war an absolute last resort.
But many others at Philadelphia—think of Washington and Hamilton—saw the world in coldly realistic terms, and wanted to forge a nation that could respond quickly and well to foreign threat. If you felt that way, you’d want to set up a structure that would make it possible not just to use force but to use it successfully. Why would such a person want a quarrelsome, faction-ridden Congress to have the lion’s share of war powers?
Could it be because they thought that any idiot president can use force, but that consulting a few more heads might make it more likely that force would be used wisely? Could it be because they thought the country would be more unified and successful in war if the people were asked about it in advance? Could that be why the Framers considered—and rejected—allowing the Senate to “declare war,” and instead insisted on including the House in the decision?
Let’s also ask the question that really counts as we consider sending the armed forces into hostile fire: Will we, and those forces, be better off if the president tells Congress in detail what he wants to do, listens to and if necessary compromises with Congress on the methods and aims he will employ, and gets its commitment to stay the course?
It’s not a hard question. I understand that relations with Congress have been difficult. I understand that the last time the president asked Congress to justify military action, the reaction was so hostile that he had to change his plans. But none of that rewrites the Constitution, or makes unilateral action—or action under a ridiculous pretense of authorization—any more permissible or any more likely to succeed. The Constitution doesn’t give Congress the power “to declare war as long as the president asks because he can be sure in advance it will give him the authorization he wants.” If Congress, after listening to the people, wants to bail on the campaign against ISIS, now is the time to hit the silk, not in the middle of an executive war.