The Precarious State of War Powers
by Elayne Allen and Kevin Kosar
It has been long established by analysts across the political spectrum that Congress has ceded vast constitutional authority to the presidency. On a variety of issues—spending, immigration, diplomacy —the Oval Office enjoys ever-growing autonomy. Meanwhile, the legislative branch displays public outrage at its leakage of power but is quietly relieved it doesn’t have to make the tough choices.
In perhaps no area of governance is this dynamic more evident than the current state of war powers. Through a careful distribution of powers, the Constitution creates a governing system that balances the war-making authorities of Congress and the president against one another. America’s founders designed it as such because they wanted to prevent any one branch from wielding unilateral military power. The president is commander in chief, but only Congress can declare war and raise the funds required to execute a campaign.
Today, however, decisions about hostilities fall almost entirely on presidents’ shoulders. Congress sometimes signals perfunctory disapproval at runaway presidents, but it does little to actually curb them. The national legislature moves the annual defense authorization and funding bills each year, but otherwise delegates matters of war and peace.
This development is the subject of Sarah Burns’ 2019 book, The Politics of War Powers. Her account is as startling as it is illuminating: the war powers of the presidency, in her telling, are basically unchecked, and therefore represent a titanic shift from the intentions of the founders.
Burns begins her discussion of American constitutional theory by showcasing debates of modern political philosophy. She focuses on two especially consequential figures: Baron de Montesquieu and John Locke. She then explores how America’s founders—especially Washington, Madison, Hamilton and Jefferson—transformed these two philosophies into living and breathing political institutions.
In Burns’ reading, Montesquieu’s constitutional vision is vastly superior to Locke’s, especially in the realm of war powers, because he “focuses on avoiding all extremes and finding dynamic moderation by forcing branches into dialogue” (p. 8). The specific distribution of powers in a given society depends on the character of its people. A particularly rowdy populous, for example, would need political offices distant from popular will, lest the tyranny of the majority steer the ship of state into wreckage. In any given political order—no matter its character—the various sectors of government must serve as a “ballast” to one another, which serves to balance and steady the regime as a whole (p. 11).
Burns shows how Montesquieu’s ideas are woven into the fabric of America’s founding thought and early political history, and remarks that in Montesquieu’s signature work, The Spirit of the Laws, he “purposely makes his examples complex in order to combat the ‘uncompromising rational ideal’ of other theorists. He shows the necessary variation among institutional structures” (p. 24). Montesquieu has always perplexed his readers because he seems to recommend monarchy in one breath, then small republics in another. In this way, his writing style models the very style of government it recommends: governmental bodies, whatever form they take, must set their various parts in dialogue with one another to form a deliberative process. This deliberative disposition was part and parcel to American political life even before the Constitution was ratified. The Federalist Papers, in carefully arguing about why certain powers were granted to particular branches, embodied the deliberate style of governance Montesquieu advocates.
From its launch, the American project featured a dialogue between the first and second branches of government about foreign affairs and war-making. For example, when faced with the Whiskey Rebellion, Washington observed carefully the terms of Congress’s 1792 law that stipulated the steps presidents must take before calling in the militia (pp. 89-90). Likewise convinced of legislative supremacy, Jefferson felt his hands tied as the Barbary pirates continually pillaged American merchants in the Mediterranean. As a result, he proceeded cautiously and relied on Congress to authorize expansion of the navy (pp. 95-97).
Burns especially considers Madison’s approach to military affairs, contrary to popular opinion, a success (albeit a qualified one). As the war of 1812 unraveled, Madison implored Congress for greater military resources, but his political opponents in the legislature only handed him a fraction of the money and supplies needed. The war proceeded poorly, without a leading figure stepping in to pursue a guiding strategy. But because national opinion about the war was divided, Burns observes that this messy outcome reflected the public will: “National ambivalence about the war was evident in the actions of Congress and a sign of a healthy constitution—regardless of problematic results” (p. 103). She concludes: “If [public] opinion is divided, it is healthy that the actions of the political branches reflect that.” Burns nevertheless chides Madison for failing to lead, as a president must when a nation is contending with foreign hostilities.
On the other hand (and much to her chagrin), Burns notes that Lockean constitutional theory has also seeped into the bloodstream of American political life. Quoting Locke, Burns is wary of his argument that the executive has the authority to “act according to discretion for the public good, without the prescription of the law and even sometimes against it” (p. 5). In certain exigent circumstances, the executive must be granted latitude to act swiftly and decisively where the law is silent or where the law could not be prudently followed. However, the Lockean arrangement, according to Burns, “does not match up effectively with the one created by the founders,” whose Constitution instead invites “pause or inaction” when no consensus exists among the branches (p. 7).
The Lockean model of executive power irreversibly established itself into America’s constitutional system in the 20th century, though it had preludes during Lincoln’s and Polk’s presidencies, both of which pushed the boundaries of executive authority. But it was Woodrow Wilson’s and Franklin Delano Roosevelt’s administrations, according to Burns, that made it impossible “to put the genie back in the bottle” (p. 130). She notes that during Wilson’s presidency, Montesquieu’s framework was still largely intact, which thwarted the unilateralism Wilson craved. For instance, he still needed Congress to issue a formal war declaration before he could take action against Germany. Congressional muscle also prevented Wilson from creating his ambitious and unprecedented League of Nations. But Wilson articulated a political ideal that sanctions boundless executive authority, and this vision formed a model for future presidents to adopt.
FDR was the president who found this model most suitable to his ambitions. Burns insightfully points out that FDR “initiated the novel practice of asking executive branch lawyers to produce arguments about the dramatically expanded unilateral powers FDR wished to assert” (p. 140). She quotes Jack Goldsmith who wrote that such an approach to constitutional power shifts the question from “What should we do?” to “What can we lawfully do?” (p. 149). Under this scenario, war debates linger over legal technicalities rather than the merits of a given hostility.
With international governing bodies like the United Nations and the modern trend toward ambiguously defined hostilities, it’s even easier for presidents to conjure justifications to act unilaterally. And, for its part, Congress has mostly let them. What few times the legislative branch has acted in recent decades were mostly symbolic, such as the joint resolution to forbid President Trump from making war against Iran, which he later vetoed. In 2001, Congress passed an Authorization for Use of Military Force that essentially granted George W. Bush free reign to engage in any military action he deemed necessary to stop terrorism. Similarly, Barack Obama leaned heavily on his Office of Legal Counsel to find constitutional grounds for the staggering unilateralism he employed to intervene in Syria’s civil war.
Reading Burns’ book, it is easy to wonder: Would a return to American constitutional government, in its proper Montesquieuian/Madisonian form, be compatible with successful defense strategy? Does Congress even want to take back its war powers? Burns leaves these questions open, but her historical analysis of war powers implicitly urges Congress to step-up and presidents to make space for dialogue with the legislature.
And while skeptics might worry that reviving Congress’s role in defense strategy would place too many cooks in the kitchen, consolidating war powers in the executive has proven calamitous too. After all, few would claim the wars in Vietnam, Afghanistan, Iraq and Syria were successful displays of America’s strategic acumen. The lessons to be drawn from these extremes is that the branches should work in tandem (a point Burns continually emphasizes). Congress possesses great deliberative capacities that are simply unavailable to a unitary executive. But the presidency is nimbler; capable of swift and decisive action. The strengths of both branches are crucial for developing sound strategy and execution. The health of the republic therefore depends on constitutionally literate and institutionally conscious occupants in both branches.
Unfortunately, the dual phenomena of the celebrity presidency and transparency in Congress incentivizes legislators to dodge their constitutional responsibilities. Voters’ eyes are on the president, and members can appease their constituents by either supporting or disparaging him or her depending on their party. They have a better chance of keeping their seats if they toe the presidential line. And, as a result of this deference, the presidency becomes an even stronger center of political gravity, accumulating unto itself more and more hard legal power and psychological clout.
Meanwhile, Congress is low on many things right now: capacity, ambition and public approval. All these factors make it much easier for our legislature to hide behind presidents, avoiding consequences of decisions they no longer make. This unsavory predicament is obviously corrosive for domestic politics. But perhaps its most deleterious consequences play out abroad, where American presidents stand before the world as unitary leaders, with only a fraying congressional leash to rein them in. Maybe remembering past wreckage and imagining future disaster could persuade Congress to reclaim its constitutionally ordained powers, especially in the realm of war.
The migration of war powers to the executive reveals just how dire the consequences can be when the branches of government abandon constitutional design. It just takes one rash president to entangle the country in disastrous conflicts. Indeed, Burns concludes with this baleful counsel: “[W]e should be watchful of leaders with skills comparable to those of Lincoln who lack his deep devotion to the constitutional system and to the philosophical tradition upon which it rests” (p. 242).