“Not Really a War” – Trump Joins Long History of Presidential Prevarication under the War Powers Act
With the order to drop 59 Tomahawk cruise missiles on a Syrian government air base on April 7, Donald Trump joined an elite club: American presidents who have tried to argue attacking another country, isn’t really “war.”
As the Syria strike drops out of the headlines, the political chattering class has already moved on to the President’s various antics closer to home. That’s unfortunate, because the underlying slow-rolling constitutional crisis represented by it will continue through the rest of his term, and on into his successor’s.
The Founding Fathers were very explicit about war powers. Giving the power to declare war to the legislature instead of the executive was a deliberate change from the British system, and men like Madison and Washington heaped praise on this decision. For them, it was all about taking the power to initiate a war out of the hands of the man, the commander-in-chief, who would wage that war.
In a letter to Thomas Jefferson, Madison opined, “The constitution supposes, what the History of all governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.” George Washington refused to launch even minor offensive raids against hostile Indian tribes, unless Congress first authorized it.
That was the constitutional consensus that prevailed until 1950, when Harry Truman proclaimed –contrary to both the United Nations Charter and U.S. law –that authorization from the United Nations for a “police action” in Korea let him bypass Congressional authorization. More than 36,000 Americans would be killed in a war that wasn’t a war.
A few years later, another disastrous war of dubious legality was winding down in Vietnam, and Americans were in a no-more-wars sort of mood. Over the veto of Richard Nixon, Congress passed the “War Powers Resolution” into federal law.
The War Powers Resolution forbids the President from “introducing the armed forces into hostilities” unless pursuant to a declaration of war, specific statutory authorization or in direct response to an attack on the United States. The Resolution also continues a reporting timeline for the President to inform Congress, though contrary to one myth, it does not authorize the President to wage war for “up to 90 days” outside of those authorized cases.
American Presidents have long chafed at the War Powers Resolution. One of the silly Washington word games that gets played is that presidents submit reports to Congress “consistent with” the War Powers Resolution, rather than the usual “pursuant to” language that is used when following a law. It’s their way of subtly not conceding its constitutionality. Less subtle is when presidents simply ignore it and just wage war illegally.
Bill Clinton and Barack Obama were the modern pioneers of waging war without congressional authorization and in violation of the War Powers Resolution. This was done through a series of increasingly-implausible arguments that this or that particular action wasn’t really a “war” or didn’t count as “hostilities.”
First with the invasion of Haiti in 1994, and again in the bombing of Serbia in 1999, Bill Clinton asserted that everything from thousands of paratroopers occupying a nation, to a weeks-long bombing campaign that killed hundreds, weren’t really “big enough” to “count” as a war needing Congressional authorization.
George W. Bush sought and received congressional authorization to invade Iraq, but when Barack Obama overthrew Libya’s Muammar Gaddafi, no such approval was forthcoming.
Instead, the administration brought forward the transparently absurd argument that hundreds of airstrikes and cruise missile attacks weren’t really “hostilities.” This was allegedly because the United States wasn’t “taking the lead” but rather just supporting its European allies.
All of which leads us to Donald Trump. In 2013, when Obama was considering an attack on the Assad regime following a chemical gas attack on Syrian civilians, Trump was on Twitter demanding that he go to Congress and insisting he had no power to attack Syria. Trump was right then.
Now, as commander-in-chief he, like almost all previous commanders-in-chief over the past 70 years, he’s apparently had a change of heart. It’s almost as if dropping over $100 million in explosive ordinance on another nation’s military is something as if every president sees as being one of his inherent powers. That is not so.
Thus far, there doesn’t appear to have been any substantive retaliation against the United States. We haven’t yet been drawn into a shooting war with Assad’s sponsor in Russia.
We either need to accept that the genius of our Constitution’s separation of powers is dead… or for Congress to begin to take baby steps at reigning in unlawful Presidential war-making. The matter is directly in the court of Congress, our nation’s Article I branch of government.