The cruise missile strike on Syria was an act of war. By ordering it without seeking approval from Congress, Donald TrumpDonald TrumpIssa dodges when asked if he wants Trump to campaign alongside him Trump's infrastructure plan can mean jobs, jobs, jobs ... and security OMB director: Government shutdown not a 'desired end' MORE like other recent presidents deviated from the practice of our nation’s first 160 years that presidents not resort to war without having or simultaneously seeking congressional authorization. Whether legal, this break with tradition is unwise.
The break first came when President Harry Truman put combat troops into Korea in 1950 without asking Congress to approve. His rationale was that American forces were conducting a United Nations-sanctioned "police action." Some police action! During the Korean War, American forces suffered more than 33,000 deaths in battle.
Members of Congress went along with war by presidential fiat because they preferred to criticize Truman from the sidelines rather than voting on war. A vote would have forced them to choose between letting the Communists take Korea or putting our nation still weary from World War II back at war.
Truman's successor, President Dwight Eisenhower, thought that the Constitution requires the president to seek approval from Congress, but his successors wanted the power to act alone. That, however, made many voters unhappy. In response, members of Congress of both parties enacted the War Powers Resolution in 1973. It was supposed to require the president to ask Congress to approve when combat is in the offing or already underway and then to withdraw if Congress does not explicitly approve within 60 days.
There is, however, a loophole in the War Powers Resolution that lets presidents avoid asking Congress to approve. Presidents of both parties have used that loophole when they unsure whether Congress will do as asked.
Congress could fix the loophole, but doesn’t want to. That way, its members can march in the victory parade if a war proves popular, but put the entire blame on the president if it does not. In 1995, then-senator Joseph Biden stated that legislators have failed to fix the War Powers Resolution because "they do not have the political courage to take a stand on whether or not we should go to war."
When he was running for president in 2008, Barack ObamaBarack ObamaCongress must delay ObamaCare's health insurance tax immediately Five things to watch in France's election Ex-Obama aide Rhodes: Le Pen victory in France would be 'devastating' MORE insisted that the president must seek authority for combat from Congress, but in 2011, congressional leaders from both parties privately urged President Obama to intervene in Libya to help the rebellion to overthrow Muammar Gaddafi, but not to make Congress vote. After President Obama did as asked, some legislators had the gall to criticize him publicly for violating the War Powers Resolution.
What's good for legislators is bad for the nation. We end up in unwise military campaigns that a debate in Congress might well have prevented through early airing of the goals and risks. Success in war is also made unnecessarily difficult because affirmative votes in the House and Senate never unified the government in support of the effort. Division within our government encourages enemies to hope to defeat us on our home front even if they are losing on the battlefront.
As President Ronald Reagan’s secretary of defense Caspar Weinberger stated: “We cannot fight a battle with the Congress at home while asking our troops to win a war overseas.”
A clear assignment of responsibility to Congress would also clarify the president's role: to lead within our democracy rather than to dictate. Such clarity is vital. Consider what happened after President Obama announced in 2012 that President Bashar al-Assad of Syria would cross a "red line" if he used chemical weapons in that country's civil war. When Assad proceeded the next year to cross that red line, President Obama erased it.
Had the War Powers Resolution been fixed, President Obama would have known that he should not lay down his red line in the first place without securing the support of congressional leaders. Had he gotten that support, his threat to Assad might have had more credibility and so discouraged him from using nerve gas in 2013 or 2017.
By calling on Congress fix the War Powers Resolution, President Trump could show that he understands that the armed forces are not his alone, but rather the people’s and as such should be used only in consultation with the people’s elected representatives.
David Schoenbrod is Trustee Professor of Law at New York Law School and author of DC Confidential: Inside the Five Tricks of Washington (Encounter Books, March 2017).
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