Ignorance about war powers plays right into Trump's hands

This week efforts under the War Powers Act to check President Trump’s unconstitutional and unauthorized war in Iran failed on a mostly party line split in both the House and the Senate. The result isn’t all that surprising. The naivety, however, on the role of Congress in matters of war is staggering. Congress is in desperate need of a civics refresher.

Senate Majority Leader John Thune (R-S.D.), in response to reporter questions on the application of the War Powers Act’s provisions to the president’s actions in Iran, said, “I think the president has the authority that he needs to conduct the activities. … As you know, there’s a lot of controversy around, questions around the War Powers Act, but I think the president is acting in the best interests of the nation.”

Speaker of the House Mike Johnson (R-La.) shrank the role of Congress even further in the hot seat saying, “the president is acting well within his authority. It's not a declaration of war. It's not required because it's defensive in design.”

Sen. Tommy Tuberville (R-Ala.) said, “we haven’t done it in years…no president has really asked for that,” when asked why Congress shouldn’t take a vote on declaring war with Iran.

All signs from the Trump administration suggest U.S. engagement in Iran is only going to scale up. Press Secretary Karoline Leavitt said yesterday she “will never take away military options on behalf of the president of the United States,” in response to whether the administration is planning to put U.S. boots on the ground in Iran. Speaker Johnson also foreshadowed the likelihood of a forthcoming emergency funding package.

If there was ever a time for a civics refresher, it would be about now. Sens. Tim Kaine (D-Va.) and Rand Paul (R-Ky.), along with Reps. Thomas Massie (R-Ky.) and Ro Khanna (D-Calif.) deserve immense credit, both as veteran defenders of congressional war powers and for bringing the most recent Iran debate to the floor in both chambers. However, the majority in Congress continues to cede that power to the presidency when their party holds the White House. The short-lived political high may feel good, but the long-term carries heavy consequences for the American republic.

“The Congress shall have Power to declare war,” reads Article I, Section 8, Clause 11 of the U.S. Constitution. Many members of Congress today believe “to declare” means simply approval of actions already undertaken by the executive. In other words, Congress is the rubber stamp of a president’s decision to take the nation into war.

The Founders would disagree. At the Constitutional Convention, James Madison and Elbridge Gerry moved to insert “declare war” over “make war” precisely to make clear Congress, not the executive, retained the power of decision. While the Founders did agree on the executive’s ability to “repel sudden attacks,” outside that very narrow circumstance the Convention held pronounced reservations about trusting one man with the war power. In the words of Oliver Ellsworth from that pivotal August 1787 debate, “it should be more easy to get out of war than into it.”

Alas, amassing power in the commander-in-chief eventually became all too tempting and saw the U.S. enter the wars in Korea and Vietnam without authorization from Congress.

Inundated by the devastating consequences of the Vietnam era in particular, Congress passed the War Powers Act. While it is fair to debate the War Powers Act’s necessity and evaluate its strengths and weaknesses as a tool, this is best tabled for its own conversation. The War Powers Act is current law. As such, it is reasonable for the American people to expect their representatives to understand its intent, how it works, and to follow it as long as it remains on the books.

Defense of the president’s actions in Iran have been riddled with inaccuracies from members of Congress on how the War Powers Act applies and functions.

First, the characterization of U.S. actions in Iran as short of war using creative semantics does not nullify the applicability of the War Powers Act. Let’s bound the terms of debate accurately. Although an imperfect standard, the War Powers Act sets “hostilities or situations where hostilities are imminent as indicated by the circumstances” as the term that triggers responsibilities from both the legislative and executive branches.

If a member wishes to employ alternative terms of art like “combat operations” and argue the U.S. is not at war, they are certainly free to do so in the public square. But on the House or Senate floor, the War Powers Act only asks whether we are or are not in hostilities or imminent hostilities. Members should be expected to have that debate publicly.

Second, the notion that the War Powers Act defines no limits on the president’s position as commander-in-chief neglects careful reading of the law. The War Powers Act states up front that the commander-in-chief’s ability to take U.S. forces into hostilities can be exercised “only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Members can wishfully conceptualize an expansive interpretation of the commander-in-chief role, but arguing the War Powers Act textually supports such a case is blatantly refuted in black and white.

Finally, the argument a president is given carte blanche to wage war for 60 days uninterrupted and unchecked by Congress is false. Precisely one paragraph after outlining the 60-day clock, the War Powers Act confirms Congress retains the right to check the president at any time U.S. forces are engaged in hostilities absent a declaration of war or an authorization for the use of military force. Although it does not force congressional action or manufacture legislative courage, the War Powers Act certainly provides the tool to act. It is a politically inconvenient truth: the War Powers Act is designed to empower, not restrain, Congress.

Congress is willing to accept short-term political gains on matters of war even if the tradeoff is an erosion of the institution’s power. It’s ugly, but true. By the same token, Congress also tries to distance itself from having to endorse a war at all costs. Hence why, in the case of Iran, no member of either party is proactively introducing legislation providing an authorization for the use of military force or a declaration of war.

On the question of war, the legislative and executive branches are not co-equals. The Founders carefully crafted the war power and intentionally vested it in Congress, guarding against the temptation to tyranny, strategic error, and foreign influence that naturally comes with the presidency. The one thing the Founders couldn’t guarantee or bestow upon each successive generation of representatives and senators is the will to protect and preserve the institution and its safeguards. Iran brings this crossroads to bear in stark fashion. Benjamin Franklin’s closing words at the Constitutional Convention, “a republic if you can keep it,” ring ominously in our time.