Congress Is Again AWOL On War Powers

US_Capitol_Building,_East_side_steps_and_domeBelow is my column in The Hill newspaper on the recent Senate hearing (in which I testified) on the proposed new AUMF legislation.  In the last couple days, an open battle erupted between Sen. Lindsey Graham (R., South Carolina) and Sen. Rand Paul (R., Kentucky) after Graham called for the addition of North Korea among the ever changing list of countries.  Paul called him “a danger to the country.”

Here is the column:

This country has been at war for 17 years. Most young people have never really known a nation at peace. If a bipartisan bill drafted by Sens. Bob Corker (R-Tenn.) and Tim Kaine (D-Va.) is successful, they will likely never know a true peacetime. Indeed, if the proposed authorization for use of military force (AUMF) is passed, our “endless war” will be put on autopilot, with no sunset date and little real congressional involvement. The past 17 years would be mere prologue to a war that could easily go 170 years longer, without a single vote of Congress.

Just this week, Sen. Lindsey Graham (R-S.C.) called for the possible addition of North Korea to the ever growing list of authorizations for war. All of this is in direct violation of express conditions set by the Framers in the Constitution, but that appears entirely irrelevant to Congress and the courts. If there is a sacred part of the Constitution, it is Article I, Section 8. The obligation of members of Congress to declare war is not merely a constitutional but a moral responsibility.

I recently testified on the Corker-Kaine proposal at a Senate hearing organized by Sen. Rand Paul (R-Ky.), who is one of the few members actively opposing the AUMF. The proposal would constitute the final abdication of the power to declare war by Congress, effectively removing a constitutional duty without a national amendment or even a debate. The new legislation would discard not just the obligation of Congress to declare wars but even the president’s obligation to secure prior authorization for specific wars.

It is precisely what the Framers thought they had prevented by refusing to give a president authority to go to war. Indeed, it was one of the most important, near-unanimous decisions made by the Framers. In the Constitutional Convention, delegate Pierce Butler proposed giving such power to the president with the expectation that he “will not make war but when the nation will support it.” He did not even receive a second to his motion. Not one Framer was willing to support such a system.

That deafening silence was one of the most defining moments in our history. It was undeniable proof that we were radically changing how wars are made. In 1793, George Washington celebrated the denial of this power to a president as a clear and binding promise that “no offensive expedition of importance can be undertaken until after they have deliberated upon the subject and authorized such a measure.”

The Corker-Kaine proposal would now bring about in a statute what Butler unsuccessfully sought in the Constitution. Members of Congress have long struggled to avoid responsibility for wars. They have used, generally, ambiguous resolutions to give them political cover if wars went badly. Thus, when the undeclared Iraq War went on for decades at the cost of trillions of dollars and thousands of casualties, politicians like Hillary Clinton simply said she had been misled in granting prior sweeping authorization. In our almost 250 years, we have had only five declared wars. The rest have been essentially “off the book” wars that give presidents unchecked authority, and Congress, plausible deniability.

Passed on Sept. 14, 2001, the AUMF was criticized by many of us as hopelessly open ended and another abdication by Congress. Rather than debate any specific country in a declaration, Congress handed over the authority for the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Not surprisingly, it was then used to launch extended military operations in Afghanistan, Pakistan, Yemen, Somalia, Syria, Iraq and Libya. It was used to attack groups that did not even exist back when 9/11 happened, as well as groups that were lethal enemies of al Qaeda. According to the Congressional Research Service, this broad authority has been used 37 times in 14 countries for acts of war.

The most disturbing element in the new AUMF is the authority of a president to add new targets or to expand the scope of the authorization at his sole discretion, requiring Congress to pass a bill later if it wants to preserve the original scope passed in the AUMF. It gets rid of the pretense of a connection to 9/11 by giving presidents practically unfettered authority to go to war anywhere and anytime.

Congress first abandoned the express requirement of a declaration of war. It then abandoned the need for specific authorizations of force in favor of broad categories of possible enemies. Now it is dispensing with the need for any prior authorizations to attack specific targets. The constitutional requirement for a declaration would be substituted with a requirement that a president inform Congress after the fact. Congress could then try to pass a bill that denied authority for a particular country or group. This would be a laughable notion given the history of Congress.

Members are fully aware that, even if a majority of members could be found to oppose a war in another country, it is highly unlikely that they could muster a veto-proof majority. The Corker-Kaine proposal achieves the goal of members to remove themselves from responsibility over war. The new AUMF would codify the desire of Congress to be a mere pedestrian to the prosecution of wars by the United States. It would combine this abdication of authority with a longstanding failure to limit the use of appropriated funds. Thus, this “blank check” will have not only an unstated purpose but an unstated amount.

In the recent Senate hearing, I did something that I have not done in dozens of prior such testimonies: I brought two of my sons. Jack and Aidan are now at or close to draft age, and I felt they should be present because they could well be asked to pay the ultimate price for wars started under this new law. If called, I know they would do their duty, as did their grandfather, great grandfather, and prior generations of our family in other wars. The question is whether members of Congress will do their duty as laid out in our Constitution and reject this new AUMF.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He has testified before Congress on national security issues. You can follow him on Twitter @JonathanTurley.

98 thoughts on “Congress Is Again AWOL On War Powers”

  1. The “Traitor,” Paul Ryan, is AWOL on impeachment of Obama’s “deep state” and referral of Obama for

    prosecution.

    “War Powers” is not a priority with an ongoing coup d’etat in America by the Obama gang.

    “…WE’LL STOP IT,…”

    The DOJ/FBI will “stop” the Constitution on Obama’s orders.
    _______________________________________________

    “[Trump’s] not ever going to become president, right? Right?!” Page wrote to Strzok in a text message set to be released Thursday as part of a Department of Justice inspector general’s report.

    “No. No he won’t. We’ll stop it,” Strzok, who was dating Page at the time, responded.

  2. The American People have lived all their lives under Emergency War Powers. Read my earlier post dated June 14, 2018 at 3:01 AM for the legal details that attempt to justify your present captivity. Wake up People!

  3. This is one of the most powerful and important columns you have written JT. Thank you. Like others, I feel your sons (nor anyone else’s children) should not comply with what would clearly be an illegal action.

    We are coming to the endpoint of open dictatorship in the US. The Reichstag is about to disolve itself.

    Over the years we have seen the Congress illegally grant one unconsitutuional power after another to the President. Congress has been making the unconstitutional “legal” for years now. As the executive gains power, each office holder takes the power they have amassed, passing it on to the next occupant who then further expands their illegal grab of power. It is my guess that the oligarchy will wait until they feel the president has ammassed enough illegal powers, they will have her or him declared president for life.

    We have come to a very bad pass in this nation. I never thought I would see this day come and it is so sad to see what evil we are doing to our own people, other nation’s people and the earth itself.

    1. We are coming to the endpoint of open dictatorship in the US. The Reichstag is about to disolve itself.

      Chuckles. Jill is so unpleasant the idea she’s worked herself into a state of distress over a fantasy brings on feelings of shadenfreude.

  4. Very well stated, Professor Turley. Plus, I love the fact that you brought your two sons to the hearing. I have commented routinely that if all Congress, government officials’ children, along with the rest of our children, were subject to a draft it would be likely that the U.S. would not pursue war so indiscriminately. Thank you for speaking to the AUMF legislation issue.

    1. I have commented routinely that if all Congress, government officials’ children, along with the rest of our children, were subject to a draft it would be likely that the U.S. would not pursue war so indiscriminately.

      We don’t pursue war indiscriminately and the death toll of American soldiers during the 25 years wherein we had a draft (1948-73) exceeded that of the 45 years wherein we haven’t had a draft – by 12 fold.

            1. It says nothing, Diane. I don’t do biography on these sites.

              The number of Americans killed in action does not go up or down in response to my personal biography. Nor are American decisions ‘discriminate or indiscriminate’ in response to that either. The criteria for evaluating them is not a function of anything about me. It is a function of those specific situations.

              1. “We don’t pursue war indiscriminately…”

                Some would beg to differ, Nutchab. And I’m not Diane. That you believe I am? It discredits you. As does the fact that you spend so much time, here.

      1. Actually we do pursue war indiscriminately. Read the papers. Our leaders may not call it war but it kills humans; drains our treasury and has in many respects turned our country into the kind of country we used to oppose. I realize no one wants to admit this or understand that war isn’t some bloodless strategy; it’s wholesale killing.

        No, I’m not a pacifist. I do however believe that a president who wants to engage in a war should have to go to Congress and make his or her case and Congress should have to stand up and vote on it in public! None of this hiding in the dark.

        1. Actually we do pursue war indiscriminately. R

          No, we do not. We’ve been at war in four theatres since 1945. We’ve had some combat operations elsewhere, over in a matter of weeks.

    2. faith,

      You make a good point. The army dissolved the draft after Vietnam, in part, for exactly the reasons you state above.

      1. The point she’s making about collective behavior is wrong. Math is hard, Barbie.

  5. I vehemently disagree that complicity in violating the fundamental rule of law is your sons’ “duty”.

  6. We have an oligarchy with a head oligarch for a President. This is only possible when chaos and confusion, real or imaginary, is the norm. So, as the turnip says unceasingly, things were catastrophic before he showed up, he was the only one that could fix it, and he is doing a terrific job of fixing it. This talk of logical and rational thinking that may or may not have taken place when the founding fathers crafted the sacred texts has little or nothing to do in this world of entertainment and BS. Every argument can be successfully argued by one lawyer to another in opposite directions. The essence of leadership is in short supply, perhaps already exhausted. So, stay for the second half, go to the concession stand and get some snacks, there is more entertainment to come.

      1. The US is the only country in the developed world of democracies that encourages oligarchs to fund politicians. The more democratic nations such as Canada, Great Britain, France, Germany, etc make it against the law for oligarchs to contribute to political campaigns. In essence, the rich influence things more, per capita, than the poor. However, the US stands apart at openly structuring its government elections by way of a circus paid for by oligarchs. It kind of takes the average American’s mind off of the issues and focuses it on the tossing of dirt, blame, and most recently just about anything. If ever there was proof of what I just wrote it can be found in the machinations of Trump.

  7. I beg to differ, this congress has done what they were paid to do. Let the banks do what they damn well please….CHECK. Let big business do what they damn well please….CHECK. Let polluters do what they damn well please…CHECK. Let the 1% run and buy anything they want….CHECK. Pass the Donor Relief Act…CHECK. Let the congress and senate be complicit in breaking down any oversight….CHECK. Letting total incompetence in their own members run amuck with lies, outright fraud, reckless policy….CHECK. Being outright spineless in deficit and spending….BIG CHECK. Taking away any hope of health care and cost for the American people…CHECK. Destroying the republican party and it’s long established norms and ideas….CHECK. I could go all day with this, but most of all…Letting a president do all what I said already.

      1. Olly,

        What fishwings said is accurate. Why doesn’t the things s/he mentioned mean anything to you?

        The banking industry fraud alone, which Congress (and the president) fully helps along, will wipe almost all of us out next time they crash the economy. And that crash is coming.

        Even if you personally have enough money to ride the disaster out, you seem like a person who would care if others suffered as a result of the illegal actions taken by the banking industry, actions now fully encouraged by this and past congresses and presidents.

        1. What fishwings said is accurate. Why doesn’t the things s/he mentioned mean anything to you? The banking industry fraud alone,

          Jill doesn’t understand the difference between facts, which may be accurate or inaccurate, and FishWings fever dreams about the world in which he lives. She also doesn’t understand the purpose of financial intermediation. Jill’s the living breathing manifestation of one of Ayn Rand’s two-dimensional idiot-characters.

        2. Why doesn’t the things s/he mentioned mean anything to you?

          Your assumption is false. I’m just not going to debate the rantings of those that have proven their outrage is absolutely partisan. Congressional oversight? Separation of powers? Rule of Law? Those are subjects I’ve been consistent on. FishWings, not even close.

    1. it is a wonder you post on these boards given how Paul continually calls you out on your inconsistences

      Populism indeed

      1. Not a single inconsistentency that I am aware of. However, read Whitman, or is it Thoreau, about inconsistentency.

        And how is not Trumpism a form of populism? I await a coherent reply with bated breath…

        1. “Populism is next to fascism” is not an inconsistent statement. It is a stupid statement.

          1. NutzIsIgnorant should have to defend that.

            But he cannot. All he has to do is read history and notice the current trends in Europe. Too much to ask I suppose.

            1. I don’t make idiot analogies, either, even if you have a penchant for them.

              Fascism as a distinct phenomenon is revanchist in character. It is generally also, if not imperialist, violent and revisionist within geopolitical spheres. It seeks a mobilization society where cartels, tripartite sectoral bodies, state allocation of capital, Keynesian priming, military conscription, and educational policy place a country on a ready war footing by default. Populist reactions can take that form, but no aspect of the foregoing is an integral or necessary feature of populism.

                    1. David Benson still owes me two citations after three weeks, one of them from the OED. – You don’t understand the Gish Gallop.

                    2. David Benson still owes me two citations after three weeks, one of them from the OED. – let’s restate the question. Where has populism led to fascism?

                    3. The reply is a variation on the Gish Gallop.

                      It has nothing to do with the Gish Gallop.

                      Europe’s fascist regimes consisted of Germany, Italy, and their client state in Croatia. Various European countries were occupied by Germany and Italy, but the local administration was run by the Wehrmacht. You had authoritarian regimes all over the place by 1939, but these were not fascist in essence. You had a fascist element in the Spanish and Hungarian governments and some fascist structures in the Portuguese government, but the regimes were not fascist. The bills of particulars against the Tiso regime in Slovakia and the Antonescu regime in Roumania were long (in re deportation of Jews), but neither regime is properly described as ‘fascist’. Antonescu’s was an institutional military regime who’d put the leadership of Roumania’s fascist movement in front of firing squads. There was a fascist element in the Slovak People’s Party, but the primary strands of thought therein were Catholicism and Slovak particularism. In re the authoritarian regimes of Europe as they were in 1939, perhaps Germany, Italy, Slovakia, and Croatia could be said to derive from a populist impulse

                      Postwar, the closest thing to fascist regimes would be Gamal Abd el-Nasser’s in Egypt and the Ba’ath regimes in Syria and Iraq. A populist impulse could be said to underlay each regime, but I’m not seeing how any populist movement in any of these countries could be said to be responsible as the regimes were put in place by secret conspiracies of military officers.

                      Latin America had political parties with a fascist aspect to them (ARENA in El Salvador in its early years and NLM in Guatemala). NLM never controlled the government in Guatemala and the business and professional element in ARENA managed to push the gangster element to the side before it took control. Neither ARENA nor NLM derived from any kind of populist movement. The term ‘fascist’ is commonly used to describe the Peronist movement in Argentina, but that’s an obvious misnomer.

        2. David Benson still owes me two citations after three weeks, one of them from the OED. – why don’t you quote Whitman or is it Thoreau on inconsistency. Do some work for a change!!!

            1. David Benson still owes me two citations after three weeks, one of them from the OED. – Why don’t you call your son and he can find it for you on his lunch break. I think you are physically incapable of finding it.

                1. David Benson still owes me two citations and a quotation after three weeks, one of them from the OED. – you can call me names, but I am the one writing longer sentences and still doing research. Killing the messenger is a logical fallacy.

    2. David Benson still owes me two citations after three weeks, one of them from the OED. Stick to your field, political science is definitely not for you. Broad brush statements without backup are typical for you. Actually, the Democratic Party is the closest to fascism we have in this country right now.

        1. David Benson still owes me two citations after three weeks, one of them from the OED. – I have both taken and taught civics, including current events. Part of that includes explaining how elections work on a practical level. Regarding the Democratic Party, they are currently selecting the candidates at the state level rather than letting the primaries sort them out, they are trying to force out Bernie from running in 2020 (although he would be a fool to run anyway). They allowed Obama to suck them dry and then allowed Hillary to buy the party so she could run for President. She then worked out a system where people paid the state parties and the money went to Hillary, so there was no money down the ticket. There is evidence coming out that the Democrats rigged voting machines.

  8. This country has been at war for 17 years. Most young people have never really known a nation at peace.

    The country hasn’t been at war at all. There is no general mobilization, there is no conscription, military expenditures as a proportion of domestic product are quite close to the post 1939 nadir. We have some combat operations abroad, but they hardly have an impact on life outside the families of soldiers and Marines.

    1. We have been waging war on dozens of countries. While our casualties may be low, we are killing thousands in other countries. Dropping bombs, firing missiles, and bullets at people in a country is an act of war.

      I’m quite certain nearly every U.S. citizens would think so if any country on earth did to us what we are doing abroad.

      1. We have been waging war on dozens of countries.

        Not at all. We’ve had combat troops in Iraq and Afghanistan. We aren’t waging war on these countries, but on paramilitary groups within these countries. Over the last 40-odd years, there have been combat operations of varying duration in Cambodia, Lebanon, Grenada, Panama, Kosovo, Libya, Syria, and Yemen. That’s 10 countries. In two of these, we were subject to unprovoked attack, in two our presence endured for a period measured in weeks, in one we were protecting a local population against a revanchist overlord army, in another our enemies were paramilitary organizations only, and two others were in an anarchic state.

        Get back to me when you learn how to count past 10.

      2. Actually I agree the US wages wars in too many countries. Acts that are clearly belligerent be the clandestine covert or not. I dont know how many really. Probably nobody reading this does.

        1. You can’t be bothered to look it up. The numbers are as noted. You could include some firefights (as occurred in Somalia) but that’s about it.

    2. @Insufferable Philodoxer June 14, 2018 at 6:32 AM
      ” ‘This country has been at war for 17 years. Most young people have never really known a nation at peace.’

      “The country hasn’t been at war at all. There is no general mobilization, there is no conscription, military expenditures as a proportion of domestic product are quite close to the post 1939 nadir. We have some combat operations abroad, but they hardly have an impact on life outside the families of soldiers and Marines.”

      What a brilliant ploy, Philo, but while you’re defining war out of existence, why not go ahead and define out disease, poverty, crime, and PTSD?

      I’d start with PTSD, as the Wounded Warrior Project says that one in three veterans suffer from it, and the Veterans Administration says that 22 US veterans commit suicide on a daily basis. It may take a while, after all, for all those so-called “traumatized” veterans to realize you’ve eliminated both war and PTSD, so you should make your announcement asap.

      You are so much smarter and humane than I’d realized.

      You really must run for president. Of your local VFW. If you’re a veteran. If you can get someone to nominate you.

  9. Endless war? I thought we were already there. What about the Vietnam limited use of minor arm twisting, Panama? Grenada?

    We are a war mongering society, we love to kill those not like us, and then crow about how much we believe in freedom. BS

    Write your senators, I did.

    1. We are a war mongering society, we love to kill those not like us, and then crow about how much we believe in freedom. BS

      We’re not any of these things. We do have an excess population of obnoxious poseurs who like to make statements like this. They’ll never be better than they are, but they could improve the quality of public life by shutting their useless traps.

            1. David Benson still owes me two citations after three weeks, one of them from the OED. – I know you won’t do this, but you really need to look up Gish Gallop. You are misusing the phrase.

                1. David Benson still owes me two citations and a quotation after three weeks, one of them from the OED. – you may have listened, you did not understand or comprehend.

      1. “We’re not any of these things. We do have an excess population of obnoxious poseurs who like to make statements like this”

        You are full of caca. You post on these boards along with the usual suspects ad nauseum ad infinitum as if nothing else mattered in your lives showing others how wretched and bankrupt our American culture is. Our nation is emphatetically a culture of death just like St Pope John Paul II and Pope Benedict XBI and Pope Francis and many non-Catholic theologians and philosophers have stated (insert your canned prideful, anti-Catholic Church diatribe here)

        Since Roe v Wade our nation has accelerated into a cauldron of self-destruction (witness the rates of obesity, hypertension, heart disease, suicide, divorce, absent fathers in households with children, etc) and other-destruction by decimating each other for blood sport (e.g. Hollywood films, TV shows, political rancor, internet pablum, Planned Barrenhood, Militant Feminists, Left wing anarchists, Socialists, etc, etc, etc)

        America, like no other nation, has celebrated itself for being so splendiferous and magnanimous, while showing itself to be a culture with no soul, dark hearts and faces that emote nothing but pride, wrath, greed, envy, sloth, gluttony and lust. Dante Alighieri had little material when he wrote the Inferno in the Middle Ages compared to our wretched American ethos

        Paul is right. We love to kill those not like us and then crow. You are prima facie evidence

        1. Silvia:
          “America, like no other nation, has celebrated itself for being so splendiferous and magnanimous, while showing itself to be a culture with no soul, dark hearts and faces that emote nothing but pride, wrath, greed, envy, sloth, gluttony and lust. Dante Alighieri had little material when he wrote the Inferno in the Middle Ages compared to our wretched American ethos.”
          *************************
          Well, given the obvious moral outrage and disgust in your words, your participation (or even your mere presence) in such a society would be a sin of the highest order elsewise you’d be a hypocrite. When is the bon voyage party?

          1. “our nation has accelerated into a cauldron of self-destruction (witness the rates of obesity, hypertension, heart disease…”

            https://imgur.com/gallery/i7l1B40

            It would have been judicious had you engaged her arguments but here we are once again mano a mano alpha vs beta bullchips

            not just a hypocrite a big fat one at that..,,perhaps I understate

            1. Its not an argument, it’s a diatribe. Arguments have facts not mere conclusions.i could certainly take issue with every point but like Gibbon said, “I never make the mistake of arguing with people for whose opinions I have no respect.” That would extend to your comment, too.

            1. David Benson still owes me two citations after three weeks, one of them from the OED. – actually he is throwing down the academic gauntlet. The problem is you make broad statements which you cannot back up. He is just telling you to prove your statement.

  10. Congress did this once before in 1933. Banking Relief Act, codified at 12 USC 95a and 95b. This was accomplished by utilizing the war powers of the Trading With the Enemy Act of 1917. The Banking legislation was a rewrite of this war Act. Portions of the original Act of 1917 were amended by merely replacing the subjects of the original Act, (Germany and the Citizens of Germany) by declaring every person subject to the jurisdiction of the United States as the new subjects of the new Act. The people of these free states were effectively declared enemies by the US under the new act.
    .
    In 1976 Public Law terminated a number of outstanding emergencies.
    The National Emergencies Act (Pub.L. 94–412, 90 Stat. 1255, enacted September 14, 1976, codified at 50 U.S.C. § 1601-1651) is a United States federal law passed to stop open-ended states of national emergency and formalize the power of Congress to provide certain checks and balances on the emergency powers.
    But 12 USC 95a&b remains intact to this day. It was not terminated.
    .
    We have been in this state of war powers emergency legislation for 85 years now. Congress is at it again. For details and citations see http://www.usa-the-republic.com/emergency%20powers/War_And_Emergency_Powers.pdf

    Keep us at war. Keep us in a state of slavery. What’s new?

  11. There are reasons to defer some aspects of the application of military force to the president for situations not present during the time of the Framers. Succinctly and obviously these involve technological reasons demanding an immediate use of force, such as a missile attack against the United States involving nuclear weapons. Yet in that incidence, we permit the use of total destruction of a society based on the decision of one human being. And, history is replete with examples of human fallibility leading to disaster.

    To address this threat, Congress accepted that there simply exists no time to assemble Congress to declare War when the missiles are in flight but then required consent of Congress to continue to prosecute such military action. For me I believe that is reasonable, provided the time to assemble is not unnecessarily long.

    I often wonder if a tempting reason for allowing the unilateral ability to prosecute a war serves to allow Congress the ability to absolve itself of responsibility should such action go awry with the American voters. That way they can blame the president if suddenly the decision is unpopular. Congress as a whole surely likes to wrap itself in the flag and rejoice in war without each Member personally suffering war’s effects. They don’t have to and that is one of the reasons war is an abstract for them. If instead they were forced to deploy to the front line with an infantry division as a condition of their demanding a war be prosecuted, the justification for military force would have a much higher bar. And if they are to demand that our younger and less connected members of the military risk their health and lives, these politicians should also. If the war they insist on declaring is unjustified, or they are too cowardly to personally defend America against a grave threat, then they are unsuited and unworthy to hold office.

    1. Darren

      It is hard to spend time on unimportant matters like deciding whether to declare war (the most recent formal declaration of war by Congress was almost 77 years ago) when you have to spend time on important things like raising money.

      There is no doubt whatsoever that the failure of Congress to formally declare war since 1941 is the result of consistent collective Congressional cowardice (how is that for alliteration).

      1. No, it’s the result of that particular rubric being ceremonial in nature. There has been no instance since the 2d World War of sustained combat operations undertaken without congressional approval manifest in resolutions at the outset and regular appropriations throughout the conflict. Brief and surprise engagements (in Grenada and Panama) were not subject to Congressional approval; The interventions in Kosovo and Libya did not (circumscribed in time, no ground troops). Policing operations (Haiti and Lebanon in its initial phases) were not. Drone strikes are not (the object of such strikes are paramilitary and criminal organizations, not countries and their armed forces).

        1. Your point brings up the 3rd thing that needs to be done; congress needs to debate and clearly define what use of our military forces would require a formal declaration of war by congress.

          1. Of all the problems there are in the operation of the federal government, the one you’re all discussing is among the least consequential. The professor is functionally content with the judicial ukase to seize authority from legislatures in the matter of social policy, but he’s irritated that Congress didn’t pass a resolution saying “We declare war on Afghanistan”, even though Congress did pass a contemporaneous resolution and funds military operations there to this day. This is trivia.

            1. Of all the problems there are in the operation of the federal government, the one you’re all discussing is among the least consequential.

              Least consequential to whom? Certainly not to those that serve in our military, their families and the federal budget. If anything, least consequential would be to the necks of those in congress shielded by a declaration of war vote not taken.

              The phrase “declare war” had a fixed meaning in international law; it did not mean to start war, but rather
              to classify a conflict as a war for legal purposes.

              The founding generation believed that, if the President could commit the nation to war, his desire for
              fame might lead him into war even when war was not in the national interest. By contrast, however, individual members of Congress would not win fame if the nation went to war and won.

              Recognition of the motivational stakes in the war powers area indicates that courts’ current application of the political question doctrine to avoid resolution of war powers controversies is misguided. Such a strategy rests on the false premise that this is an area in which Congress will struggle for control, when in fact this is an area in which Congress has an incentive to evade responsibility.
              https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2052&context=facpub

              1. Least consequential to whom? Certainly not to those that serve in our military, their families and the federal budget. If anything, least consequential would be to the necks of those in congress shielded by a declaration of war vote not taken.

                No clue why it would matter to a soldier or a Marine. You’re there under a ‘declaration of war’ or you’re there under a joint resolution. No clue why you fancy Congress has shirked. They pass the resolution and they vote the appropriations. No clue why you fancy it has any effect whatsoever on the federal budget.

                1. No clue why it would matter to a soldier or a Marine. You’re there under a ‘declaration of war’ or you’re there under a joint resolution.

                  As well trained as our military is, every service member wants to know why they are there. They will follow orders, they will go in harms way, they will do what they were trained to do. But they will always ask why, especially when leaving family behind, when working 20 hour days, when eating cold food, when creditors begin harassing their spouse, when their buddy has a leg blown off, when the spouse doesn’t write. when missing your children’s milestones. You name it and they will always want to know why.

                  No clue why you fancy Congress has shirked.

                  Does the constitution require resolutions from congress or a declaration of war?

                  Is there a clear definition of what is war?

                  1. A declaration of war isn’t going to tell them why they are there.

                    Congress is delegated the power to ‘declare’ war. Does that mean no military operations absent a ‘declaration’ are permitted?

                    1. A declaration of war isn’t going to tell them why they are there.

                      Why wouldn’t it?

                      Does that mean no military operations absent a ‘declaration’ are permitted?

                      I don’t believe so, but what is the threshold to require a formal declaration from congress? What is the definition of war?

                    2. Because it simply does not, any better than does a joint resolution.

                    3. Does that mean no military operations absent a ‘declaration’ are permitted?

                      I don’t believe so, but what is the threshold to require a formal declaration from congress? What is the definition of war?

    2. I often wonder if a tempting reason for allowing the unilateral ability to prosecute a war serves to allow Congress the ability to absolve itself of responsibility should such action go awry with the American voters.

      After Justice Holmes comment below, this would be the 2nd issue to address: what would be the motivation for congress to find a way to cede this authority to the executive if it is clearly in their Article 1 powers? Politicians don’t naturally seek to weaken their role in government, but it appears that to them a weakened role is more favorable than not having a role at all. One they would risk by voting for or against war.

      1. @Philodoxer: “A declaration of war isn’t going to tell them [military service members] why they are there.”

        @Olly: “Why wouldn’t it?”

        @Philodoxer: “Because it simply does not, any better than does a joint resolution.”

        In other words, Olly, theirs is not to reason why, theirs is but to do and die. Philo knows that when you’ve got an empire to run, you can’t be standing around on antiquated ceremony.

    3. Thats a well considered and temperate remark. Also the Founders could not have known how successful their project would become: worldwide economic and military empire.

      The Dux Bellorum is the CIC.

      Nonetheless, Congress should retain its powers as much as can be.

  12. Any member of Congress that votes for this bill is in violation of his or her oath of office! The CONSITUTION can only be amended through the process set up therein. This attempt to turn the president into a virtual dictator and king is Unamerican. It destroys the clear separation powers set up by the founders.

  13. Linda Graham loves him some war – wish the denizens of South Carolina would vote his sorry arse out but I fear he will die while in office like his buddy McStain.

Leave a Reply