Yes, I know what is in the Constitution. I know that only the Congress has the power to declare war. But I also have watched over the last three decades as President after President has used American military force without a vote in the Congress.
And that seems like it could happen again in coming days with regards to Syria.
“Article 1, Section 8 of the Constitution gives Congress — not the President — the power to declare war,” said Rep. Thomas Massie (R-KY), as he and other Republicans demanded a vote in the House and Senate before any action is taken over Syria’s use of chemical weapons.
Another Republican, Rep. Justin Amash (R-MI), said it would be “unquestionably unconstitutional” for the President to act without Congressional authorization.
“The War Powers Act is clear,” Amash said on Tuesday.
But that argument is not new, and has not exactly stopped Presidents in the past from acting before the Congress votes.
“To be sure, weapons of mass destruction are a 20th century horror that the Framers of the Constitution had no way of foreseeing. But they did foresee the frailty of human nature and the inherent danger of concentrating too much power in one individual. That is why the Framers bestowed on Congress, not the President, the power to declare war,” one Democratic Senator said eleven years ago.
That was Sen. Robert C. Byrd (D-WV) in 2002, weighing in against President George W. Bush’s plan to strike Iraq.
Congress did vote for a “use of force authorization” for the two wars against Iraq, as well as the post 9/11 fight in Afghanistan – but those weren’t a “declaration of war” as envisioned under the Constitution.
The U.S. Congress has only officially declared war five times – 1812 against the British, 1846 for the Mexican-American War, 1898 for the Spanish-American War, World War I and World War II.
Since World War II, the Congress has been on the sidelines while the Commander in Chief – from both parties – has pressed U.S. military forces into action without Congressional consent in a number of situations – Lebanon, Grenada, Libya, Panama, Bosnia and Serbia come to mind.
While a few lawmakers have uniformly opposed the use of U.S. military force by Presidents of both parties, more often than not there is a political angle to how Congress reacts – if the President is not in your party, then you are more likely to question that military decision.
Just look at past statements of both President Obama and Vice President Biden – when they were Senators and Republicans held the White House, they held a slightly different view of whether the Congress should get a vote before the Executive uses military force.
“The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” Sen. Obama told the Boston Globe during the 2008 campaign.
Back in June of 2011, after the U.S. had given military assistance to rebels in Libya, the President was asked at a news conference if he felt like that action had violated the War Powers Act, and was therefore an unconstitutional exercise of power; Mr. Obama said no.
“Now, when you look at the history of the War Powers resolution, it came up after the Vietnam War in which we had half-a-million soldiers there, tens of thousands of lives lost, hundreds of billions of dollars spent — and Congress said, you know what, we don’t want something like that happening again. So if you’re going to start getting us into those kinds of commitments you’ve got to consult with Congress beforehand.
“And I think that such consultation is entirely appropriate. But do I think that our actions in any way violate the War Powers resolution? The answer is no. So I don’t even have to get to the constitutional question. There may be a time in which there was a serious question as to whether or not the War Powers resolution — act was constitutional. I don’t have to get to the question.
“We have engaged in a limited operation to help a lot of people against one of the worst tyrants in the world — somebody who nobody should want to defend — and we should be sending a unified message to this guy that he should step down and give his people a fair chance to live their lives without fear. And this suddenly becomes the cause célèbre for some folks in Congress? Come on.”
While Speaker John Boehner said this week that “meaningful consultation should happen before any military action is taken,” the truth is that Congress has evolved into a bit player, standing on the sidelines as Presidents consider military action.
Whether that’s right or wrong isn’t really the issue – it’s where things are right now for lawmakers, no matter what the Constitution says.
In the end, the Congress has the power of the purse, and can deny funds for certain military operations – but that is unlikely to happen.