In his Sept. 10 address to the nation, President Barack Obama asserted he already had authority to go after the Islamic State of Iraq and the Levant but would welcome congressional action to underscore the U.S. commitment. Leaders of both parties in Congress, while supportive of the president’s aims, visibly balked at holding a direct vote to authorize military action, at least before the midterm elections. It was a rare profile in bipartisanship if not courage.
To date, the president has been pursuing a limited mission to protect American personnel and threatened religious minorities in Iraq. Obtaining a full-fledged congressional debate and vote for wider military action would both educate the public and fulfill Congress’ responsibilities under the war powers resolution. Failure to pass such a measure, however, would throw the administration’s foreign policy credibility into further disarray.
A year to the day before his Sept. 10 address to the nation, the president asked Congress for authority to enforce his “red line” against Syria for using chemical weapons on its own people. Congress made clear then it didn’t want such a vote and that, if taken, it would fail. Before the matter came to a head the confrontation was preempted by a Russian-brokered deal with the Assad regime.
By contrast, in 2011, the president avoided seeking such a vote from Congress for the NATO air strikes against Libya’s Gadhafi regime to head-off an anticipated massacre of civilians. The president leaned instead on support from the Arab League and United Nations.
The War Powers Resolution was enacted by Congress in 1973 over President Richard Nixon’s veto. Nixon and all his successors called the act an unconstitutional intrusion on their authority as commander-in-chief to protect the nation. Especially objectionable was the requirement that, absent congressional approval, troops must be automatically withdrawn from hostilities after 60 days, or 90 days if the president certifies additional time is necessary to ensure their safe withdrawal.
The act was plagued from the start by ambiguities because a House-Senate conference committee did not fully resolve differences between the bodies. One section specifies “only” three situations in which the president can commit troops to hostilities: A declaration of war, specific statutory authorization, or to repel a direct attack on the U.S., its territories or armed forces.
Another section requires the president to report on situations in which U.S. forces “are introduced into hostilities or situations where imminent involvement in hostilities is clearly indicated by the circumstances,” or “into the territory, airspace or waters of a foreign nation while equipped for combat” — all without specific reference to any attack on the U.S., its territories or armed forces.
Not surprisingly, a group of 15 House members initially voted against the legislation for fear future presidents would consider it a three-month free pass to wage war anywhere for any reason without congressional acquiescence. That concern has proved especially prescient.
Presidents have generally honored the law’s reporting requirements when committing U.S. forces to hostilities or imminent hostilities. In the meantime, unless specifically asked for authority by the president, Congress prefers to avoid a vote on extending troop commitments beyond the deadline and does not insist on their automatic withdrawal thereafter. The unauthorized bombing war over Libya, for example, went on for seven months as the mission morphed from humanitarian to regime change.
Obama’s claim that he has authority for the latest military campaign under the 2001 Authorization for the Use of Military Force ignores Congress’ specific rejection in that instance of broader language requested by the Bush administration. In addition to requesting authority to “use of all necessary force” against those responsible for planning, authorizing, committing, aiding or harboring those who committed the 9/11 attacks, the administration wanted blanket authority to “to deter and preempt any future acts of terrorism or aggression against the United States.” Congressional negotiators said “no.”
The Constitution is clear that the power to declare war resides in Congress. History shows, however, that the residents aren’t always home or answering the door when a president or circumstances come knocking.
Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.
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