London is a retired partner for the law firm Paul, Weiss, Rifkind, Wharton & Garrison and the author of The Client Decides; he was a principal lawyer for Vice President Spiro Agnew.
Article I, Section 8, of the U.S. Constitution provides: “The Congress shall have the power… To declare war…”
Article II, Section 2, provides: “The President shall be commander in chief of the Army and Navy of the United States…”
The distinction could not be clearer: Congress is not the Commander in Chief, and the President has no power to declare war.
Where, then, did President Truman get the authority to send troops to Korea without seeking Congressional approval, Eisenhower send troops to Lebanon, Johnson to bomb North Vietnam (even before the questionable Tonkin Gulf Resolution), Reagan to send troops to Grenada, Clinton to bomb Serbia, Bush I to invade Panama or Obama to make war in Libya, and so on and so forth? Where did President Trump get the authority to in all but name declare war on ISIS, and to bomb Syria and have troops on the ground there? How is this all being done without any declaration or authorization by Congress? And why are efforts to change this state of affairs failing?
Put aside the issue of whether our wars on ISIS or against Syrian President Bashar Assad’s forces are morally justifiable. What is the legal justification for this violation of the Constitution?
There is no answer that passes the laugh test.
Truman called our presence in Korea a “police action.” People said Clinton could bomb Serbia because of the commander-in-chief clause.
Currently, our leaders argue we can make war against ISIS and Assad because on September 14, 2001, Congress reacted to the attack on the Twin Towers three days earlier by passing The Authorization for Use of Military Force (AUMF), which gave the President power to use military force against “those who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Without congressional approval, the Bush Administration independently insisted that meant it was authorized to make war on Al Qaeda and the Taliban wherever we found them. Congress sat on its hands, and successive administrations have followed suit.
But even under that questionable extrapolation of the 2001 AUMF, there is certainly no authorization for the current war against ISIS or our attack on Assad for his chemical assault against his own people. ISIS had nothing to do with the 9/11 attack — it did not even exist then, as the President himself has enjoyed bringing up, albeit with incorrect information. There is also no suggestion that Assad’s 2018 atrocities had anything to do with 9/11. Yet the proponents of presidential war-making power, both in and out of Congress, continue to cite the 2001 AUMF as authority for the Executive Branch’s military ventures. Those justifications are legally preposterous.
A bipartisan group of Senators is now actually getting ready to propose a new AUMF, but there is apparently no hope of getting it through either house. Outgoing Speaker of the House Paul Ryan has said he sees no need for new legislation. In the wake of the news about the latest chemical attack, Ryan said the President “has the authority under the existing AUMF.” But that is not true, and even lapdogs should at times be skeptical of where their they place their loyalties.
It seems obvious what is going on here: Congress doesn’t want to make these decisions, especially since they might come back and bite them come election time. This is disgraceful.
The prime example of this was when Assad used chemical weapons and crossed Obama’s “red line” declaration. The President then went to Congress to seek authorization to strike Assad. Congress did not take up the bill. It was never even discussed. The result? Obama did not use force, and the hawks criticized Obama — not Congress, to its delight.
It is clear that two of the three constitutionally created Departments of our government have been engaging in an unmistakable, if unspoken, conspiracy to ignore the Constitution. They do this even as most of these foreign adventures have public support. In Korea, we fought the bad guys. The same occurred in Kosovo. ISIS is evil, and Assad’s use of poison gas is horrendous. But why take unnecessary political risks when there’s always an election right around the corner for all the members of the House and one-third of the Senate?
It is perhaps easier to overlook Constitutional violations if we have Dwight Eisenhower making the call, and we were even okay with the Bush presidencies and President Obama. This assault on our Constitution may also be easier to swallow when the adversaries are monsters like ISIS and Assad. But the wisdom of the Founders is ever more prominent today. Their vision was that making war on anybody was something deserving — indeed, demanding — discussion and decision exclusively by the people’s representatives. That’s the law.
But our current Congress ignores its Constitutional duty. While Trump bombs, Congress dithers.
This danger will not disappear. With regards to North Korea, the President is talking about how big his nuclear button is — demonstrating a malignant misunderstanding of the President’s power. Unless the United States is attacked, the button does not belong to him. It belongs to Congress.