The War Powers Act revisited

Senator Arthur Vandenberg, who was the Chairman of the Senate Foreign Relations Committee during the Truman administration once famously said that “Politics stops at the water’s edge.” If recent events are any indication, those words deserve to be inscribed on the side of a mountain, right next to bigfoot and the Easter Bunny.

As of this writing, we have successfully prevented a Benghazi-type failure at our embassy in Baghdad and eliminated Iran’s serial exporter of proxy-war terror, General Qasem Soleimani. Retaliation by uniformed Iran forces has been limited to a couple of non-lethal missile strikes, and we currently seem to be on a productive diplomatic path. The response by Iran-backed proxy groups is not yet evident.

Both praise and criticism for the action have fallen mostly along party lines. Democrats and doves regard the decision to eliminate Soleimani as ill-considered and reckless. Republicans and hawks are refreshed by an administration willing to address the issue with something other than palettes of cash. The prospect of publicly acknowledging state-sponsored funding of terrorists should be welcomed by all.

From time to time, events call upon us to review the power to use military force and how it is divided between the Executive and Legislative branches. As the Constitution spells it out, the President is the Commander in Chief of the Military and is charged with the primary responsibility to conduct foreign policy. The right to declare war is reserved for Congress, who also wield power by controlling the national purse strings. That’s clear enough, except no one declares war anymore.

The last time the United States declared war was against Germany in World War Two. Since the signing of the United Nations Charter, the declaration of war has largely been outsourced to the U.N. Security Council, who now bestows their blessings for military actions, as they did for the expulsion of Iraq (“by all necessary means”) from Kuwait in 1990. Since the UN was created, only a hand full of nations have officially declared war, which interestingly includes Panama, who declared war on the United States in 1989. We came out OK on that one.

So for thirty years, we had a bit of a burp in the constitutional balance of powers. The Executive continued to run the military and conduct foreign policy, and Congress controlled the budget, but the declaration of war? It wasn’t such a big deal anymore. During that time, we had the Korean conflict, which Harry Truman described as a “Police Action,” a little thing called Vietnam that was ostensibly triggered by an attack on a US Warship in the Gulf of Tonkin (theories vary on that fact alone) and in short, we never let the lack of an official declaration of war stand in the way of keeping our military busy.

In 1973, Congress attempted to reestablish its role in the war-making process (and limit the powers of the presidency) by passing the War Powers Act. The act granted the right of the Executive to act in the case of a “national emergency created by an attack upon the United States, its territories or possessions, or its armed forces.” The act then sets out requirements for the Executive to consult with Congress and obtain approval for such action, and grants Congress the right to order the Executive to stop.

Currently, there are concerns over the definitions of “consultation” and “notification.” In 1973, I don’t think Congress would have envisioned a President who uses Twitter at two o’clock in the morning for notifications. Nor would they have predicted an administration threatened with impeachment before it even took office and plagued by media leaks, both external and internal. Those factors alone impede the Executive’s willingness to consult with Congress before the fact, particularly when there is high-level intelligence involved.

Toward that end, Nancy Pelosi has announced that the House of Representatives will take up a vote to limit the powers of the Executive Branch with regard to military actions against Iran. As this article goes to print, the vote has not yet taken place, but it is widely expected to pass along mostly party lines. It will mirror a similar measure introduced in the Senate by Democrat Tim Kaine (Hillary’s Veep pick), but supported by a minority of Republicans including Senators Rand Paul, Mike Lee and possibly one or more of the other GOP swing votes in the Senate: Collins, Murkowsky and Romney. The Senate only needs four defectors to overcome the majority, so the President’s staff will be on the phone to Blue Dogs like Joe Manchin of West Virginia.

Most Americans believe that the balance of power structured under the Constitution is an important key to the continued success of our country. It is correct and appropriate that it be revisited and updated from time-to-time. A healthy country can question itself.

What concerns me is the partisan vitriol that is currently driving it. Military strategy hampered by divisions along party lines results in incoherent foreign policy. The branches of government need to stay in their own lanes and stick to the Constitution. The Executive conducts foreign policy and runs the military. Congress holds the purse strings and should reserve reasonable powers of oversight to provide the checks and balances prescribed by the founders. That’s the way it has worked since 1788, and with a bit of care and upkeep, it will continue to do so.