Home > News > Only Congress has the authority to declare war. Can it take that power back from the presidency?
179 views 8 min 0 Comment

Only Congress has the authority to declare war. Can it take that power back from the presidency?

Here are some possible courses of action — if the legislature wants to do more than signal its displeasure.

- September 30, 2020

Editors’ note: This article is part of “Rethinking Our Democracy,” a series on institutional reforms to Congress and the presidency, which is a joint initiative by the Center for Effective Government at the University of Chicago and Protect Democracy. All other articles within this series can be found here.

The Constitution places the authority to declare war with Congress. Nonetheless, since the 1950s, modern presidents have assumed the authority to use military force in conflicts that include Korea, Grenada, Haiti, Kosovo and Libya. Though President Trump has railed against overseas wars, he ordered attacks on Syrian forces in 2018 and ordered a drone strike that killed Iranian Maj. Gen. Qasem Soleimani. The existing framework for curbing presidential warmaking, the War Powers Act, seems ineffective. Here’s why this happened — and how Congress might reassert itself.

The Constitution gives Congress the power to “declare war,” but presidents have encroached on that authority

By granting Congress the power to “declare war,” the Constitution made it difficult to wage war. At the Constitution’s creation, the authority to declare war included the power to decide whether to wage it. If the United States wanted to wage war, both chambers would have to pass a resolution and present it to the executive. This meant that though the president could recommend war or veto war resolutions, he could not wage war on his own authority.

This distribution of authority is now unsettled. Ever since President Harry Truman sent troops to the Korea Peninsula without congressional authorization (he called it a “police action”), presidents have claimed broad authority to wage war, without explicitly describing it as such, so as not to flout the Declare War Clause.

In 1973, Congress enacted the War Powers Act to reassert its primacy on matters of war. Congress declared that the president could use force only when the United States was under attack, when U.S. forces were assaulted or pursuant to congressional authorization. Moreover, U.S. forces were to withdraw from “hostilities” within 90 days unless Congress affirmatively authorized their continued use. In sum, the act imposed a restraint on presidential warmaking.

Today, the executive branch misreads the act, arguing that it actually sanctions 90-day military actions. Furthermore, the executive regards some uses of lethal force as outside the act’s confines. For example, during the Libya conflict the Obama administration argued that the armed forces may kill thousands and yet not be engaged in “hostilities.” These readings represent evasions of the act’s strictures.

A re-energized debate in Congress

Two brewing conflicts may have changed the equation. In Yemen, the Trump administration continues to provide military support to the Saudis as they attack Houthi rebels, assistance that dates back to the Obama presidency. Similarly, the strike against Soleimani raised fears that the Trump administration may enmesh the United States in a war against Iran.

In response to these conflicts, one hot and one cold, Congress passed two bills. With respect to Yemen, Congress attempted to bar future involvement in the suppression of the Houthi rebels and to bar the use of federal funds in this conflict. Regarding Iran, Congress likewise sought to bar military action against Iran and the expenditure of funds. The president vetoed both and neither chamber came close to overriding.

Signaling to voters

That Congress took action is noteworthy. It might lead some to suppose that more effective legislation is around the corner and might even be signed by the next president.

However, Congress was never going to prevail via stand-alone measures that were sure to be vetoed. Indeed, legislators knew that the bills would never become law; they likely were signaling their general displeasure to constituents rather than attempting to stop attacks on Iran or halt support for Saudi attacks in Yemen. Thus, the resolutions were largely cheap talk, designed to shift the blame for these conflicts to Trump. Still, as political scientists Will Howell and John Pevehouse argue, congressional pushback does influence the scope and duration of any presidential use of force.

Obviously, if Trump serves a second term, he is unlikely to change his mind and sign such bills. If Democratic presidential nominee Joe Biden becomes our next president, he too is unlikely to acquiesce. After all, if he favored withdrawing aid to the Saudis, he could do so unilaterally, rendering a new law unnecessary. Furthermore, a President Biden will not want his hands tied by a No-War-With-Iran law, since the threat of war supplies leverage. Finally, many Democrats who voted for the Iran bill would likely not vote for a similar bill under a Biden administration either out of party loyalty or because they believe that Biden would wield military force more responsibly.

Congress has meaningful options for curbing wars

If this analysis of legislative preferences is mistaken or if a greater number of legislators grow more intent on curbing the executive, Congress has more dramatic options.

Congress might elect to include its war-fighting restrictions in the Department of Defense Appropriations bill. Any veto of such a bill would be self-defeating because without military funds, the executive branch cannot aid the Saudis. Such appropriation restrictions, enacted annually, worked to prevent the Obama administration from shuttering the Guantánamo prison.

A more aggressive option would be more targeted. Congress could decree that whenever presidents attack overseas, a favored program is automatically cut. For instance, Congress could decree that whenever the president uses force without authorization, there shall be a 50 percent reduction in a budget item the president favors, such as a new weapons system.

Legislators fully recognize that the War Powers Act is not fully effective. They have yet to settle on meaningful reform because they are currently content with criticism and symbolism. Whether they pursue more consequential options will turn on whether voters demand more radical reforms.

Saikrishna Prakash is the James Monroe distinguished professor of law and Miller Center senior fellow at the University of Virginia and is the author of “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers” (Belknap Harvard 2020).