A Case for Presidential War Powers Revision
In response to the September 11 attacks, Congress passed a joint resolution in 2001 giving authorization to President George W. Bush, “to use all necessary and appropriate force against those nations, organizations, or persons, he determines planned, authorized, committed, or aided the terrorists attacks that occurred..” This resolution was controversial because it welcomed criticism of whether the executive branch had an excess amount of war power authority.
Upon inspecting the history of presidential wartime authority, it is obvious that the executive branch has too much leniency when it comes to war time authority power, having serious repercussions for a Trump presidency.
Dahlia Lithwick exemplifies the problem undergirding the abuse of wartime executive authority by tracing the history of the War Powers Act of 1973. This act requires the president to report to Congress within 48 hours of sending troops into combat. Commitment for combat must be within 60 days unless an extension is approved by Congress and Congress can terminate combat commitment through the passage of a concurrent resolution. The passage of this act happened following the administrations of Lyndon B. Johnson and Richard Nixon, where it was evident that the U.S. entered the Vietnam War without a congressional declaration. Yet the act has never been invoked by Congress and presidents of both major political parties have deemed it unconstitutional. Two former White House secretaries, James Baker and Christopher Warren, have advocated for “consultation between the branches… not executive deference to Congress,” as a solution to wartime powers debate.
The abuse of war power authority has occurred during various presidencies, making it a prolific problem. Gallagher identifies these moments, highlighting the gross proportion of leniency exhibited by the executive branch. A starting point is what he calls Cold War Strategic Culture. Following World War II, concerns about national security created a climate which encouraged a “decision making culture” that was comfortable with the executive branch acting as the head of development of U.S. foreign policy strategy. Aircraft carriers, missiles and nuclear weapons shifted national decision making away from a traditionalist mindset of deliberation into one of crisis response. Later President Truman exhibited similar abuses by offering financial aid in support of French colonization efforts in Vietnam, which segued into the U.S. involvement in the Vietnam War. Following suit, President Johnson convinced Congress to pass the Gulf of Tonkin Resolution, a reckless and unethical act, that used false reports to garner support for the resolution.
The following presidencies showed no signs of improvement. During George H. W. Bush’s presidency in 1990, Operation Desert Shield “quickly fulfilled the conditions of the UN resolution… [b]ut the lack of full, national debate on how to terminate the Persian Gulf War essentially facilitated the transition of a quick military success into a 12-year open-ended quasi-war,” lasting until the 2003 invasion of Iraq. George W. Bush’s presidency became especially notable for displays of executive war power authority–some scholars arguing it had occurred at unprecedented levels. The Al Qaeda attack on the World Trade Center in New York on September 11, 2001, was used to justify U.S. intervention in Afghanistan under the Bush Administration. The “ deliberate and deadly attacks were...” declared to be “...acts of war.”
Yoo offers a perspective that sees presidential war power authority as justified. According to him, the framers of the Constitution intentionally distinguished how the Constitution applies its system in times of war by deciding that the president should have a leading role in national security. He asserts that Congress would delay action because of its loose structure, ability to veto, and its decentralized nature. Because Congress itself already has the power to enforce matters of U.S foreign policy, there should be no concern over abuse of presidential war time authority. These powers are evident in Congress’ control of the military budget, which would allow it to reduce the military size, shrink or eliminate units, freeze supplies, and refuse to pass laws funding specific projects.
Contrary to Yoo’s claims, writers like David Schoenbrod and Joseph Gallaghe assert that there is a constitutional issue of power imbalance, because such authority should lie with Congress. The Constitution empowers the legislative branch with authority to declare war but gives the executive branch authority to act as the Commander in Chief. Congress often transfers power to the executive branch in order to shift responsibility for detrimental impacts of war. Schoenbrod succinctly states the issue: “Congress could fix the loophole, but doesn’t want to. That way, its members can march in the victory parade if a war proves popular, but put the entire blame on the president if it does not.” But what must be acknowledged is that Congress’ complacence in the abuse of presidential wartime authority has repercussions beyond political geopolitical strategizing. Allowing this blatant abuse of power is not only reckless—it is detrimental to the U.S. public. As Joseph Gallagher said, “militaries [may] fight wars, but nations go to war.”
Fast forward to current life under the Trump administration and the situation has escalated. In March, The Guardian published a piece revealing that the White House was entertaining a secret Pentagon proposal designating temporary regions of active hostility where the military could initiate wars of up to six months without congressional approval. The amount of autonomy the military would have is equivalent to the active warzones in Iraq. The level of autonomy is further illustrated by the fact that the U.S. military is currently involved in Libya, Somalia, Syria, and Yemen without any formal declaration or authorization of military force (AUMF). Even with a country like Iraq that has an AUMF, the level of military autonomy allotted is beyond rational boundaries.
Taking a look at the 2002 resolution against Iraq, the wording in the resolution is extremely vague, stating “the President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States.” With no clear limitations established, practically any action targeting Iraq by the president can be justified under this resolution. This problem is expected to increase in severity since no action is currently being contemplated that would address this issue which is seen by many as a perversion of authority.
The abuse of presidential war time authority is multifaceted in that no one actor is to blame for its occurrence. Certainly, the executive branch has over stepped its boundaries, but congressional power—as it exists currently—cannot offer a proper check on executive overreach. Put another way, Congress simply does not have to tools to address this issue. Rather than rely on Congress to forge a solution, it would be best to create an alternative legislative body to address the issue of wartime authority.
My proposal is to create a non-partisan war authority commission that must be involved with matters concerning presidential war powers. I envision this body to be a small group of selected advisers that collectively represent a diverse range of backgrounds on knowledge pertaining to geopolitics, security management and critical international theory.
A central tenant of membership—diversity of thought and background— is crucial, as this will help avoid polarized political struggles. This commission should be comprised of past military generals, geopolitical advisers of major think tanks, and critical academics. The purpose of this commission would not simply be to offer advice to the president. On the contrary, all decisions regarding military, geopolitical, state-building interests would be decided by this body, with the president’s participation. Decisions made in agreement would overall be in concordance with the majority of this body. Presidential access to this body must be prioritized as all acting members must be on standby to address any military or geopolitical threat that may arise at any given time.
Overall, this is merely a starting point. While proposals like this must be evaluated with scrutiny and— fine-tuned to make it the most plausible option to address presidential war power authority; we must not lose sight of devising solutions to this critical problem.
Michelle Waters is an undergraduate student of international affairs at Lewis & Clark College.
The views expressed in this piece do not necessarily reflect the views of other Arbitror contributors or of Arbitror itself.
Photo: "WTC smoking on 9-11" by Michael Foran on Wikimedia with a CC BY-SA 3.0 license.