American Presidents Don’t Ask for Permission Before Starting Wars
And it turns out they don’t have to
U.S. military intervention in Syria may only poll at nine percent, but a lack of popular support is hardly an impediment for launching a new war. In fact, impediments to executive use of force seem fewer than ever.
A common misperception is that the United States doesn’t declare wars anymore, with the president sidelining the constitutional responsibility of the Senate to declare wars. This is largely false. America has only ever formally declared war 11 times in five conflicts.
Those wars are the War of 1812, the Mexican-American War, the Spanish-American War, and World Wars I & II. While most of these wars just involved a formal declaration against one nation, World War I involved declarations of war against Germany and Austria-Hungary. In World War II, the United States declared war on Japan, Germany, Italy, Bulgaria, Hungary, and Romania. The last of these, against Romania, passed unanimously on June 4, 1942. That’s it. That is the sum total of formal declarations of war by America.
America has fought more wars than that, and it’s fought them with constitutional authorization by Congress. Instead of declaring war, the Senate can instead pass an Authorization for the Use of Military Force (though they sometimes have different names, like the “Gulf of Tonkin Resolution” or “An Act further to protect the commerce of the United States”). These authorizations, for almost all intents and purposes, put the United States at war, and give the executive authority to wage war, within the bounds specified.
Perhaps the most famous one of these, referred to in policy circles as “the AUMF” is the one passed following the Sept. 11th, 2001 attacks against the United States. Signed by then-Pres. George W. Bush on Sept. 18th, 2001, it is still in place, interpreted expansively to pursue war against terrorists and terrorist-harboring states. The AUMF is the legal underpinning behind the Oc. 2001 U.S.-led invasion of Afghanistan, and American military strikes against suspected terrorists in Pakistan and Yemen.
Broad language, and broader interpretations in the name of national defense have allowed both Pres. Bush and Pres. Barack Obama to wage a sweeping war with congressional authority. The AUMF “authorize[s] the use of United States armed forces against those responsible for the recent attacks launched against the United States,“ which is now treated as Al Qaeda or an Al Qaeda-affiliated terror group.
Not all the enemies of the United States are conveniently Al Qaeda affiliates, however. Invading Iraq required a separate authorization. When the United States decided to support a No Fly Zone protecting the rebellious Libyan city of Benghazi from a massacre at the hands of Libyan strongman Muammar Gaddafi, there was a U.N. Security Council resolution calling for it, and executive prerogative let it happen.
U.N. resolutions aren’t congressional approval, and presidents have gone to war without them in the past. The War Powers Resolution, passed following the Vietnam war and designed to check presidential war-making power, has been largely ignored by every executive since Pres. Richard Nixon’s veto was overturned and the law put into place. Every executive since 1973 has rejected the idea that the War Powers Resolution has binding authority over war powers, but presidents do tend to loosely follow the resolution’s requirement for submitting reports to Congress.
What is left to constrain the executive use of military force? Funding, pretty much exclusively.
The problem with this is that a president can bring the nation into war, put soldiers in harm’s way, and then make the case that the war needs to continue, all before Congress has a chance to vote on funding the war. Congress, then, is faced with something of a Sophie’s Choice: fund a war they don’t approve of, or face voters angry that they’d chose a political fight instead of feeding and supporting the troops.
For 2011’s intervention in Libya, the House tried to have it both ways: it passed the funding, but refused to authorize the mission. The problem is that funding is tacit authorization.
How long will the executive have this much control over war powers? Until an entire Congress is willing to make the case against funding a war, expect executive justifications to steamroll Congressional complaints. If Pres. Obama decides to involve the United States militarily in Syria, that will be his executive prerogative.
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