The President’s Excessive War Power

by , February 24, 2015

Barack Obama, after six months of fighting against the brutal group ISIS, has finally decided to ask for congressional approval of his war. He, like the Bushes before him, maintained that he already had the authority to go to war but only asked for Congress’s permission out of courtesy. And despite their often blind hatred of the president, his Republican opponents want to give him even more power than he wants to run his war. The Republican love of unconstitutionally excessive executive power is curious; because of unfavorable national demographic shifts, they have a tough road to winning the presidency back anytime soon. One would think a primarily congressional party, such as theirs, would want to enhance their own power at the expense of the executive – except that Congress rarely wants to take any responsibility for war these days, because of the fear that members might not get re-elected if the conflict goes south. And in Afghanistan, Iraq (the first time), and Libya, things did go south.

The founders of the nation, were they here to see such arrogant usurpation by imperial presidents of Congress’s constitutional war power, and Congress’s willing abdication of it, would simply pass out. A few gray areas of the U.S. Constitution exist, but the war power isn’t one of them. The document placed most of the war powers – including declaring war, even the approval of lesser military action, the raising of armies, the maintenance of a navy, and the funding and regulation of the armed forces and militia – with the people’s branches of governments. The American founders intentionally created this unusual arrangement, because they did not like the militarism of the European monarchs of the day, who took their countries to war on a whim and let the costs in blood and added taxes fall to common citizens. In the founders’ original conception of their system of government, the executive was only the commander-in-chief of the armed forces after war had been decided by the people’s branches and under whatever restrictions they imposed. As the debate in the Constitutional Convention indicated, only in the extreme case of the country being under imminent attack and the Congress not being in session, could the president take military action without congressional approval; even then he should seek a prompt authorization when possible. Furthermore, as a court case early in the republic’s history during John Adams’s administration confirmed, the founders envisioned only a narrow role for the president as commander-in-chief – he was commander of the armed forces on the battlefield, not the commander-in-chief of the nation, as he seemingly has purported to be during the Bush and Obama administrations and other recent presidencies.

Oh how far we have come from the founders’ vision! Now we have an imperial presidency, which has usurped much power from what was supposed to be the premier branch of the federal government, the Congress – instead making the executive branch dominant. Although congressional power over the all-important federal budget began being lost to the executive branch in the 1920s, congressional war power, perhaps because of the clear intent of the Constitution and debates in the Constitutional Convention, lasted until 1950, when Harry Truman refused to ask for a congressional declaration of war for the Korean War. For the first time in American history, Congress did not declare war for a major military action.

Truman’s transgression set a bad precedent. The Congress has since run from declaring war for big conflicts and small. The legal and political implications of declaring "war" apparently have become too scary for the people’s representatives to exercise their constitutional duties. In the next big war, Lyndon B. Johnson forgot to tell the Congress about secretive U.S. raids on North Vietnam’s coast, and then exaggerated the North’s alleged retaliatory attacks on the U.S. destroyers supporting those raids, in order to get Congress to pass the open-ended Gulf of Tonkin Resolution. LBJ then ran with the resolution and used it to justify a massive escalation of a land war in that country. The Congress eventually repealed the resolution, but the damage had been done.

The elder Bush declared that he had the fiat power to wage a huge war against Saddam Hussein in the early 1990s, but that as a courtesy, he would ask Congress to approve it. His son took a similar tack for 2001 Authorization of the Use of Military Force (AUMF) for the war on terror and for the 2002 authorization for his invasion of Iraq.

After Truman’s bad precedent, most presidents didn’t even bother getting any congressional approval for small wars: for example, Eisenhower’s invasion of Lebanon in 1958, Reagan’s invasion of Grenada in the early 1980s, the elder Bush’s invasion of Panama in 1989, Clinton’s air war against Serbia over Kosovo in 1999, and Obama’s air campaign against Libya in 2011.

Bush and Obama have both run illegal drone wars in Pakistan, Yemen, and Somalia by stretching the 2001 AUMF, which authorized military action only on those nations, organizations, or individuals who perpetrated or assisted with the 9/11 attacks or harbored the attackers, not loosely "affiliated groups" as the media keeps reporting. Now Obama surprisingly has sent a request to Congress to seemingly limit his authority to wage war against ISIS and "associated persons and forces," by restricting its duration to only three years and ruling out "enduring offensive ground combat operations." Yet the proposed authorization would be much less restrictive than meets the eye, because no geographical limitation is envisioned, "enduring offensive ground combat operations" is still too nebulous a term, and as the flagrant abuse of the even more specific 2001 AUMF showed, any president is likely to run wild with any "associated persons and forces" language. Because of the success of ISIS, many groups are popping up around the world, claiming allegiance to bask in the group’s reflected glory, without posing much of a threat to the United States. It is even questionable whether the main ISIS group, which is primarily a regional threat to the Middle East, is much of a threat to the United States.

If Congress has the courage to pass any approval of this questionable American use of force, it should at minimum take out the "associated persons and forces" language, limit the geographical scope of the fight, and be very specific about what limited ground operations are authorized. Congress should also repeal the 2001 AUMF and the 2002 Iraq War authorizations because they are out of date, and Obama will continue to abuse them, especially if Congress fails to agree on any new resolution for fighting ISIS.

Read more by Ivan Eland