National Interest

by Michael O’Hanlon and Amy McGrath

    The Constitution does not endow the presidency with unilateral war-making powers. Yet, Congress is acting as if it did.

    President Donald Trump has taken the most powerful nation on Earth to war against Iran and its theocratic regime. Whatever one thinks of his decision, there were valid reasons to worry about Iran’s nuclear program and its broader behavior in the region. But even if the objectives in going to war were debatable, they were not debated in the US Congress. In a democracy like ours, that is unconstitutional and unacceptable. One person must not have exclusive decision-making authority over matters of war and peace for the United States of America, unless there is an imminent and acute threat to the United States that requires emergency action.

    The US Constitution makes the president the commander-in-chief of the US military. Yet it gives Congress the exclusive power to declare war, requiring a majority vote in both the House and Senate before the United States initiates hostilities. Declarations of war may be outdated in some ways, but decisions to authorize the use of force are not. Indeed, when done right, they can strengthen a president’s hand in resolving crises short of war by showing potential adversaries that the nation is united. In other situations, a healthy Congressional debate and no vote may keep us out of conflicts that we’d be better off avoiding.

    In 1973, after the disasters of the Vietnam War, Congress passed the War Powers Act, requiring presidents to obtain Congressional authorization for any conflict lasting longer than 60 to 90 days. President Richard Nixon vetoed it; Congress then overrode the veto and the bill became law. But it has two huge loopholes. It allows the president to determine what counts as a war and gives that same president two to three months of unilateral military action without Congressional blessing.

    Admittedly, even a perfect version of the War Powers Act could not guarantee sound decisions in every case.

    First, future presidents might question its constitutionality, just as past presidents have questioned the constitutionality of the War Powers Act, since Article II of the Constitution makes the president commander-in-chief of the American armed forces. However, the extent to which Article II powers override those given to Congress under Article I is debatable, since these include the exclusive authority to decide whether a war makes sense in the first place, as well as which US military forces to raise, train and equip for battle.

    Second, Congress can make mistakes too—as it arguably did in 2002 when authorizing President George W. Bush to overthrow Saddam Hussein even in the absence of a credible, rigorous plan to restore stability to Iraq thereafter.

    Third, some military operations might not rise to the threshold of war. However, presidents and their handpicked legal teams should not be the ones to determine what actions rise to the standard of war.

    The bottom line is that no Congress and no democracy, is perfect. But when we go to war as a nation and send our men and women in harm’s way, we should make those decisions together, with both the executive and legislative branches playing central roles.

    The Iran War, unpopular with the American people and unilaterally started by President Trump, has made it clear that it is time to close the loopholes in the War Powers Act. It is also time to vote on Iran, even if it is politically inconvenient for some members of Congress. The actual hostilities are not yet over despite the ceasefire agreed to last week and ground troops are still en route to the Middle East.

    Congress, on behalf of the American people, has a duty to shape the parameters of what President Trump can and cannot do with the US military, in Iran and beyond, going forward. Recent Democratic efforts to impose a US ceasefire have failed in Congress; a more promising approach would place boundaries around future US military action, for example, by prohibiting a ground invasion of Iran.

    No president, Republican or Democrat, should ever take the nation into war alone. The Founding Fathers were right about that 250 years ago and it remains a valid, even crucial, principle for our democracy today.