The Evolution of War Powers: Congress, Presidents and Military Action

As he has done frequently in both his presidencies, President Trump stretches presidential powers to great lengths without regard for the Constitution, the Congress, the American people, or our allies. Yet, he is observing the letter of the law in this naval and air attack on Iran. It is worth examining this issue.

Starting with Harry Truman, every president has sent armed combat forces abroad without a declaration of war. Often, with a briefing and little or no consultation until we suffer substantial combat casualties. Congress has seemed generally content with this, given its lack of formal objections or seeking judicial intervention.

The Constitution gives Congress the authority to “declare war,” which the framers surely intended as the power to approve any use of military force against or alongside foreign powers. Hence, President Truman’s characterization of the Korean War as a “Police Action” in 1950 was constitutionally questionable. Yet Congress never challenged it by legislative action or in the courts. Other presidents did likewise, and Congress has gradually relinquished its war power authority to the executive branch, much like someone shedding unnecessary layers in extreme heat.

In doing this, Congress played a significant role in creating the “imperial presidency.” The tariff mess is another prime example of passing legislation that delegates its authorities to the executive. Doing this avoids “tough votes” in Congress and results in Congress abdicating its constitutional role.

In an attempt to reclaim authority over military combat as the Vietnam War ended, Congress enacted the War Powers Act of 1973, overriding President Nixon’s veto. Ironically, this law made it constitutional for presidents to use military force for military operations short of war for brief periods without congressional approval, provided Congress was informed in advance. Rather than restricting presidential power, the act was a delegation of authority for presidents to engage in hostilities without congressional authorization, if the action was time-limited and stopped short of full-scale war – a self-inflicted wound by Congress. Presidents have accepted that grant of power, but contested the law’s constitutionality because of the limitations it imposes on the supposed exclusive control of the president as commander in chief.

As did most of his predecessors since 1973, President Trump informed the “group of eight” congressional leaders prior to the start of hostilities, but doing so while asserting that the 1973 law is unconstitutional. Like most of his predecessors, he did so only after decisions were final and troops were already moving into action but before combat began. Yet to inform is not to consult. But Congress has consistently accepted minimal information as sufficient to turn over its constitutional authority in Article I, Section. 8.

Besides declarations of war, the same Section 8 empowers Congress “To make rules” to govern and regulate “the land and naval forces” and to call forth “the Militia to execute the laws of the Union.” These provisions show clearly that the president’s “commander in chief” powers, including control of the National Guard, are limited by congressional powers. The founders intended the legislature to be the most powerful branch and devoted half of the text to its powers. Countervailing power permeates every part of the Constitution. No one gets all the authority in any grant of power.

The 1973 law formally ceded to the executive the power to take military action short of war for limited periods, provided Congress is “informed” periodically. Congress’s role, according to the War Powers Act, is to listen. It retains its power to declare war in an age when declaring war is obsolete. Use of force short of war is now a presidential power.

President Trump contends he has constitutional authority for his attack on Iran, even as he proclaims that it is a “war.” Harry Truman used a UN Security Council resolution as his legal justification for Korea, and Congress’s vote explicitly opposing the invasion of Cambodia did not stop Richard Nixon. Even after the Cold War, President Clinton acted unilaterally against Saddam Hussein and sent the military to Somalia, Haiti, Bosnia, and Kosovo. For the major wars, Vietnam, Afghanistan, and Iraq, Congress has voted resolutions and funding, but no declaration of war.

The only good outcome is for Congress to correct the error of 1973 and recapture its original constitutional role in declared and undeclared warfare and management of the armed forces. Unfortunately, this will require far more bipartisan cooperation in both chambers than now exists, especially because, as in 1973, it would need a veto-proof majority.

This issue is distinct from whether the actual attack on Iran was a strategic move or a throw of the dice. If the recent Venezuela, Nigeria, and Iran examples of the imperial presidency are not enough to energize Congress, then this president is likely to give them another case in the near future. We may already be in one involving the entire Mideast and there is always Cuba.

Thomas E. McNamara has served as assistant secretary of State for political-military affairs, ambassador to Colombia, ambassador at large for counterterrorism, special assistant to President George H.W. Bush and Adjunct Professor at George Washington University. He is a member of The Steady State.

Founded in 2016, The Steady State is a nonprofit 501(c)(4) organization of more than 390 former senior national security professionals. Our membership includes former officials from the CIA, FBI, Department of State, Department of Defense, and Department of Homeland Security. Drawing on deep expertise across national security disciplines, including intelligence, diplomacy, military affairs, and law, we advocate for constitutional democracy, the rule of law, and the preservation of America’s national security institutions.