The killing of a top Iranian military leader on orders given by President Trump has once again sparked discussion of the appropriate role of Congress and the executive branch on the highly sensitive subject of making war.
Article I, Sec. 8 of the Constitution states “the Congress shall have the power … to declare war.” Article II, Sec. 2 of the Constitution states “the President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into actual service of the United States.”
These sections and the expressions of the framers of the Constitution as they sought its ratification, serve as the foundation for over 230 years of debate about how the war power is shared. The Founding Fathers vested the power to declare war in Congress because they understood that kings and presidents often took their nations to war for diverse motives such as ambition or military glory. Whether either or both of these factors were considered by President Trump in his order to take out Soleimani remains a mystery. What is becoming increasingly clear, however, is that Trump’s impulsiveness and lack of basic understanding of foreign relations has put the nation more at risk.
Congress defers to the president
Congress has declared war only five times, the last being the declaration of war against the Axis powers in WWII. Since then the U.S. has been involved in massive and prolonged wars in Korea, Vietnam, Afghanistan and Iraq. Most of these interventions were authorized by the president as commander in chief to protect American lives, property or interests abroad, and to fulfill the nation’s obligations under treaties.
Congress, on the other hand, has the power of the purse to fund military interventions, conduct investigative oversight, and the Senate provides advice and consent. Even with this formidable power, Congress has often deferred to the president because members of Congress are loathed to be perceived by their constituents as not supporting the troops that are already conducting the armed conflict.
Congress pushes back during Vietnam
During the divisive Vietnam conflict, Congress had had enough with the poorly managed conduct of the war by the Johnson and Nixon administrations. In 1973 Congress passed the War Powers Resolution over Nixon’s veto. Still on the books, the law requires the president to consult with the Congress before introducing U.S. troops into hostilities; report to Congress any commitment of forces within 48 hours; and terminate the use of force within sixty days. There is also a 30-day withdrawal period if Congress does not declare war, or does not extend the period by law.
Through the years, this awkward compromise of executive and legislative authority has resulted in presidents intervening as they see fit while Congress plays the role of bystander, fearful of intervening in ongoing military operations.
Today, there is a new type of war called cyberwarfare. According to our intelligence agencies cyberwarfare has been used against the United States by other nations including China, Iran and Russia. Cyberwarfare has also been conducted by terrorist organizations and non-state actors against our corporations and government. Our adversaries are now able to sabotage our critical infrastructure, including our power grid, financial institutions, and, air traffic control systems and influence our political/electoral system.
Congress must recognize that war in today’s world is conducted not only by those with boots on the ground, but also by cyber warriors who are an ongoing threat to our national security.
Response to the 9/11 terrorist attacks
The 9/11 terrorist attacks on our homeland created a crisis that required an immediate response. Congress, coordinating with President George W. Bush, within days passed the Authorization for Use of Military Force Act, otherwise known by its acronym, AUMF. In general it authorizes the president to use all necessary and appropriate force against those nations, organizations, or persons the president determines planned, authorized, committed, aided or harbored the terrorist attacks that occurred on Sept. 11, 2001. It specifically states it is not intended to supersede any requirements of the War Powers Resolution.
The primary purpose of the act is to authorize armed conflict against Al Qaeda and the Taliban both in and outside the boundaries of Afghanistan. In those instances where it might not seem to authorize force, the executive branch will determine whether the president’s Article II powers as commander in chief and chief executive as interpreted by the executive branch itself, might authorized such actions.
Two decades using the 2001 war authorization
Not surprisingly, Presidents Bush, Obama and Trump have used the AUMF for two decades, far beyond the borders of Afghanistan, on a number of occasions. According to 2014 report by the Congressional Research Service, it was used 18 times during the Bush administration, and 19 times by President Obama. President Trump has used it in at least 4 instances, including the one that killed Soleimani.
Congress responds
Democratic Virginia Sen. Tim Kaine, a leading proponent of updating the AUMF, is a member of the Armed Services and Foreign Relations Committees. According to Kaine, Congress has given presidents a blank check to wage war. “We’ve let the 9/11 and Iraq War authorizations get stretched to justify wars against multiple terrorist groups in over a dozen countries,” he has said. He has proposed a bipartisan bill that would update the 2001 law by adding the authorized use of military force against the Islamic State in Iraq and Syria (ISIS) and require congressional review every four years. In addition the bill proposes that the president shall report to Congress on all newly designated forces, the basis for the designations and each new country in which they are located.
There are several more reasons this law should be updated. They include the growing risk that the further out from Sept. 11, 2001 we get, the courts might call into question or limit the existing AUMF. Also noteworthy is that less than 20 percent of the current members of Congress were in office when the 2001 AUMF was enacted.
Trump’s impulsivity and lack of understanding puts the nation at risk
After the assassination of Soleimani, a very bad actor who reportedly killed hundreds of Americans, it was not surprising that Iran would threaten the U.S. with retaliation. Trump immediately rose to the bait and tweeted the United States government had identified 52 sites for retaliation against Iran if there were a response to Soleimani’s death. Some, he tweeted, were of “cultural” significance.
Such a move could be considered a war crime under international law, but Trump said that he was undeterred. No Republican member of Congress stepped forward to challenge him. What we have is a classic case of Trump not knowing or caring about the possible unintended consequences of his actions.
Our representative democracy is based squarely upon an independent co-equal legislative branch to balance and check executive power. Our democracy was not intended to have the Congress subservient to a president. Unfortunately, that is what the Republican controlled Senate has become. The framers of the Constitution gave authorities to all three branches often with the intent to force power sharing between them.
Congress is the only branch that represents the diverse interests of the American people. Selected more frequently than the president, members of Congress are closer to the people than the president. Now more than ever, it’s incumbent upon Congress to exercise its independence and assure the American people that they will limit this president from making the cataclysmic mistake of plunging us into an unnecessary war.
Tom Coleman represented Missouri as a Republican in the United States House from 1976-1993. He has taught as an adjunct professor at New York University’s Robert F. Wagner Graduate School of Public Service and at American University in Washington, D.C.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.