President Obama asked Congress on Wednesday for authorization to use military force against ISIS, and smart money gives long odds he’ll get it. The fact is, legislators have only rarely asserted their constitutional prerogative to block a president from going to war, and there’s a reason why: They don’t want the responsibility or—more to the point—blame if all hell breaks loose as a result of their saying no.
The practice (usually, the charade) of presidents asking the Hill for permission dates back to 1973, with passage of the War Powers Act. A whiff of revolt was in the air. Richard Nixon’s presidency was collapsing, with the Senate Watergate hearings (he would resign, to avoid impeachment, the following year); his war in Vietnam was siring massive protests, and news reports had just revealed his secret bombing of Cambodia (which prompted Congress to draft the act). The same year saw publication of Arthur Schlesinger’s 500-page tome, The Imperial Presidency, which won critical acclaim, climbed the best-sellers list, and supplied scholarly heft to the mood of disenchantment.
Nixon vetoed the War Powers Act, which ordinarily would have been the end of it, but Congress actually mustered a two-thirds majority in both houses to override the veto.
In the first post-Watergate elections, in 1974, Democrats recaptured both houses of Congress, gaining 49 seats in the House, giving them a veto-proof super-majority, and most of the new members rightly felt they had a mandate to take back some of the power that Nixon had so brazenly grabbed. Over the next few years, the legislature halted the flow of money for the war in Southeast Asia, barred the use of funds to fight communist rebels in Angola, and placed restraints on the CIA and NSA with passage of the Foreign Intelligence Surveillance Act.
And yet, except for this brief spate of assertiveness, Congress hasn’t followed through. Presidents ever since have dispatched troops around the world, as they’ve seen fit, with little resistance. They haven’t been as brash as Nixon. The War Powers Act, among other things, required them to report to Congress when they send troops into battle, and, for the most part, they’ve complied. But this hasn’t put much of a crimp in their style: Since the act’s passage, presidents have submitted reports on military action 130 times—not exactly a sign of the restraint that the act’s sponsors meant to impose—and Congress has rarely resisted.
The act requires a president to withdraw troops after 60 days if Congress hasn’t, in the meantime, declared war or authorized the action. President Obama went past the 60-day limit in Libya, but argued that the War Powers Act didn’t apply because authority had been transferred to NATO; some groused, but did nothing about it. Bill Clinton went past the deadline in the bombing campaign against Kosovo. He argued that he hadn’t violated the act because Congress had voted to fund the bombing, which he took as implicit authorization of the war. California Republican Rep. Thomas Campbell sued the president, but the D.C. circuit judge, in Campbell v. Clinton, ruled that this was a political matter, not to be decided by the judicial branch.
And that has pretty much defined the prevailing attitude. Courts, at all levels, are very reluctant to intrude upon the president’s privileges as commander in chief, as cited—and broadly interpreted—in Article II, Section 2, of the Constitution.
Schlesinger’s thesis in The Imperial Presidency was that the Founding Fathers would never have allowed—in fact, explicitly outlawed—this concession to executive power. The Constitution gave the president the power to make war (deciding “the direction of war when authorized or begun,” as Alexander Hamilton, the most pro-executive of the Founders famously noted) but Congress (again quoting Hamilton) would have “the sole power of declaring war.”
Yet it’s not just courts that have gulped at overruling the executive’s presumptions of power. Congress too has rarely leapt to block them—not even against Nixon. The House Judiciary Committee rejected two of the five Articles of Impeachment brought against Nixon in 1974. One of them, voted down by a decisive 12-26 margin, would have indicted him for “false and misleading statements” on the secret bombing of Cambodia, “in derogation of the power of the Congress” to declare and fund wars. (The successful articles nabbed him for abuse of power, obstruction of justice, and defiance of a subpoena.)
Massachusetts Democrat Rep. Robert Drinan, who’d introduced that article, was appalled, finding it “incongruous that a president be impeached for unlawful wiretapping but not unlawful bombing … for concealing a burglary but not for concealing a massive bombing.”* Yet this incongruity typified, and still does, the political landscape.
Nixon, of course, was not the first president to ignore Congress while sending troops into battle. James Polk sent troops to the Texas-Mexico border to provoke a war; Abraham Lincoln expanded the size of the army and proclaimed martial law; William McKinley sent troops to China during the Boxer Rebellion; Theodore Roosevelt sent troops and warships throughout Central America; Calvin Coolidge sent troops to Nicaragua; Harry Truman sent troops to Korea; Lyndon Johnson sent troops to the Dominican Republic—all without congressional say, and very much with congressional complicity, even to the point of few objecting to the official labeling of the Korean War (which lasted three years and killed more than 36,000 American soldiers) as a “police action.”
Well after the American people grew tired of the Iraq war, and even after the 2006 midterm elections, when Democrats recaptured the House and Senate, in large part because of disfavor over the war, Congress voted down all attempts to cut, much less end, that war’s funding—thus declining the one power, the power of the purse, that it incontestably held.
Why has Congress been so reluctant on this front? There are several reasons. First, especially in Iraq, presidents have seized the initiative by proclaiming that a cutback, or simply a cut, in funding would endanger “the troops.” In the age of the all-volunteer military, when so few Americans sacrifice in wartime and so many feel vaguely guilty about it, this can be a powerful rhetorical device.
Second, we are no longer living in 1973. The catastrophe of Vietnam spurred scrutiny of U.S. foreign policy generally and a realization—not just among left-leaning historians—that America had been backing a lot of tyrants and thugs in the name of free markets and anti-communism.
Today, in the wake of Iraq and Afghanistan, there is similar distaste for going to war and a distrust of presidential power (though the latter is for different reasons, having to do more with partisan passions than national trauma). Yet several things are different.
First, few Americans would dispute that the enemies cited in today’s battle plans—the jihadists of ISIS and its associates—are genuine bad guys who really do pose a threat to the security interests of U.S. “allies and partners” (as Obama’s proposal puts it) and, indirectly, to the United States itself.
Second, owing to drones, precision-guided bombs, and—in the war against ISIS—the willingness of local soldiers and militias to fight on the ground, the use of U.S. military force doesn’t necessarily involve much risk to American servicemen and women. Obama’s request states explicitly that the resolution he seeks from Congress “does not authorize” the use of U.S. forces “in enduring offensive ground combat operations.” (Though, no doubt, there will—and should—be debate over the definitions of “enduring,” “offensive,” and “operations”.)
Third, though many Americans have little trust in the president, they have less still for Congress. Back in 1973, when the War Powers Act was passed, the roster of senators included Frank Church, Clifford Case, J. William Fulbright, Stuart Symington, Jacob Javits, William Proxmire, Hubert Humphrey, Mike Mansfield, Henry Jackson, and Sam Nunn. These were thoughtful people with depths of knowledge in history and experience in the world. To hold them up to the present cast of characters is to sink in shame and sorrow.
It is both good and bad news that most of today’s legislators aren’t really interested in matters of war and peace. They regard debates as theatrical occasions to embellish their own reputations or (in the case of Republicans) to diminish Obama’s.
If a majority could be struck from a coalition of dovish Democrats, libertarian Republicans, and Tea Party fire-breathers who place crushing Barack Obama above all other goals, then Congress might reject the president’s request and reassert its constitutional prerogative—though, if Hamilton and Madison could bear witness, they might wish to dissociate themselves from the spectacle.
But the math and the politics make this unlikely. A few senators, on both sides of the aisle, will turn the floor debate into a serious discussion. Some may force compromises in the resolution’s language, most of which—concerning the duration of the authorization or stricter prohibitions on combat ground forces—Obama is probably willing to accept. In the end, though, they’ll give the president what he wants. And, though they won’t say so openly, they really don’t want it any other way.
*Correction, Feb. 12, 2015: This article originally misquoted Rep. Robert Drinan as refering to President Nixon “conducting a burglary.” He said he was appalled that Nixon would be impeached for “concealing a burglary but not for concealing a massive bombing.” (Return.)
