How the presidency’s war powers border on the monarchical.

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The US has been at war 226 out of its 243 year existence. The constitution says war must be declared by Congress, but in reality, Congress has declared war only 11 times, the last instance being World War II. Presidents, throughout America’s history, have bristled at the thought of including Congress in the business of foreign policy or most notably, war itself. The past two centuries are littered with examples of President’s failing to notify Congress, playing coy, or even willfully ignoring their direction.

Congress’ last major attempt at reigning in the presidency was via the War Powers Resolution enacted in 1973, the aftermath of the Vietnam War. As if roused awake from slumber, a determined group of Congress members realized — perhaps because of widespread disapproval and protests of the war in Vietnam — the power they had willingly given away in conducting foreign policy. They sought to change that.

Richard Nixon vetoed The War Powers Resolution, but it was promptly overridden by Congress. Nixon labeled the act an “unconstitutional and dangerous” check on his duties as commander-in-chief of the military citing that it “would attempt to take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years.” The law itself was framed as a means of guaranteeing that “the collective judgment of both the Congress and the President will apply” whenever the American armed forces are deployed overseas.

Ten years after its passing, Jacob K. Javits, former Senator of New York, liberal Republican, and the man who had crafted the War Powers Resolution and introduced it to Congress a decade earlier, was brought before the Senate Foreign Relations Committee to once again advocate for his bill. He said, ‘’Ladies and gentlemen, this is extremely serious business because my purpose in crafting this law was that those who suffer and die, those who pay the price for war, shall have an equal interest in what happens respecting war…There’s nothing holy about the Commander in Chief.”

Mr Javits would die three years later due to a terrible neurological disease, but if he were alive today, I’m sure he’d be dismayed to hear that the War Powers Resolution has had largely the opposite effect. In spite of Congress’ good intentions, its effectiveness has been constantly questioned, with notable examples (e.g., Bill Clinton and Kosovo or Barack Obama and Libya) of presidents flouting or ignoring the rules marring its potency.

In 1999, Alison Mitchell wrote an op-ed for the New York Times titled “The World; Only Congress Can Declare War. Really. It’s True.” In it she described how, “for the past quarter of a century Presidents and Congress have almost seemed to conspire to find ways around the war powers law.” She continues by saying, “the war powers law may have actually done the opposite of what its drafters intended, actively discouraging Congress from taking stands on wars. He said Presidents and Congress often view the 90-day time limit the law sets for a deployment without Congressional approval as a grace period during which Congress does not have to take a stand. Afterward, with American soldiers under fire, a vote against war is politically untenable.” This was in the midst of Representative Tom Campbell of California invoking the now controversial law to force the House of Representatives to take a stand on President Bill Clinton’s bombing campaign in Kosovo.

More than a decade later, The War Powers resolution came back into the spotlight recently with the passage of S.J.Res.54, a joint resolution enacted by both houses of Congress to remove U.S. support for the Saudi-led war in Yemen. President Trump utilized the second veto of his presidency on this bill saying that, “This resolution is an unnecessary, dangerous attempt to weaken my constitutional authorities, endangering the lives of American citizens and brave service members, both today and in the future.” While this ordeal marked a significant shift in Congress’ thinking on Yemen, Saudi Arabia, and it’s inherent war-making powers; Congress was unable to overcome the veto with a vote of 53–45.

Robert F. Turner, writing for The National Review, argued against the Yemen resolution saying that “Congress misunderstands its constitutional role regarding the use of force.” He cites passages from Thomas Jefferson and Alexander Hamilton claiming that “the transaction of business with foreign nations is executive altogether.” His argument hinges on the meaning of “to declare war” listed in Article 1, Section 8, Clause 11 of the Constitution.

Bernie Sanders and Mike Lee, the original sponsors of the Yemen resolution, argued in an op-ed in USA Today that, “this resolution shows that Congress has begun to reassert its constitutional responsibility over war making. As we have both repeatedly stressed, Article I of the United States Constitution states that it is Congress which has the power to declare war, not the president. The Framers gave that enormously important responsibility to the branch of government that is closer and more accountable to the people.

The intractable problem in all of this is the nature of American foreign policy, a field that often requires spur of the moment decisions, especially in wartime. The key attributes being speed and flexibility, both qualities Congress isn’t known for, it’s a tough one to crack, and often the president has several tools at his disposal to create political conditions that can make it difficult for Congress to say no to war in the first place.

Such is the dynamic that has always existed between the legislative and executive branches. How do you balance the on-the-spot, flexible decision making of the presidency against the slow, deliberative methods of Congress? Obviously, the framers saw the value in each style of governing, including them both in the Constitution. We hear the term “checks and balances” a lot, but what isn’t clear is how effective that mandate of providing a counterweight has been for both Congress and the presidency.

It’s a conundrum that reaches much further than Congress’ inherent power to declare war, budging up against oversight, accountability, and ultimately impeachment. All of these areas by their nature necessitate a certain amount of political friction between branches of government, and while the President’s powers have steadily grown, Congress has largely shied away from challenging Presidents on any of it.

The climax of this century-long conflict is yet to come. Whether or not Congress will pursue articles of impeachment against President Trump will be of critical importance, acting as an indelible mark on an often fraught relationship. Will Congress relinquish more of its inherent powers of oversight and accountability or will it finally stand up for itself?

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