Is Congress fine with giving up its war powers?

Daniel DePetris, Tribune News Service

President Donald Trump has signed more executive orders in his first 10 days than his recent predecessors have signed during their first 100. Trump, who fancies himself a man of action, is relishing his power as chief executive. Trump’s policy decisions, however, have faced resistance from the federal courts. Lawsuits have been filed against the White House for what the plaintiffs categorise as unconstitutional actions that vastly exceed the president’s authority. Nearly 10 federal court judges have placed injunctions on Trump policies. Having lost one of those cases, the Trump administration has already appealed to the circuit courts. While the specifics of each individual case are different, the question is practically identical: Is Trump overstepping his power to pause or cancel federal spending that Congress authorised and appropriated?

Opinions depend on where you sit. Executive branch officials argue that as chief executive of the federal government, the president has the right to dictate how US taxpayer dollars are spent. Lawmakers generally don’t buy that argument because it usurps the so-called power of the purse, or the ability of the legislative branch to authorise and appropriate money for government programs, departments and agencies. Congress tends to guard its spending power as if it were a newborn in the crib, and you can bet that as the cases pertaining to spending work their way through the court system — likely up to the US Supreme Court — the fight between the executive and legislative branches is bound to get ugly.

Yet there’s a heavy dose of irony here. The talk of the town today is about preserving one of Congress’ most fundamental powers: doling out taxpayer money for the executive branch to spend. But there’s another fundamental power that Congress as an institution has largely deferred to the executive without so much as a protest: the power to declare war. We hear a ton about the former but barely a peep about the latter. This is of course unfortunate, because as important as spending money is, one can make the argument that sending Americans to war is an even more consequential decision. The first is about cash, while the second is about life and death. The Founders of the American republic understood this implicitly, which is why they codified the power to send the nation to war in Article I, the exclusive domain of the legislature.

They did this for two reasons. First, no single individual should have to bear the weight of making this heavy decision on their own. And second, any decision to go to war should be thoroughly debated by Americans’ elected representatives. “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department,” James Madison argued years before he ascended to the country’s highest office. More than two centuries later, however, you can be forgiven for thinking lawmakers have no role in war and peace issues. Over the last three decades, successive U.S. presidents have repeatedly proffered expansive theories on why the president as commander in chief possesses the right to take military action without congressional approval.

This isn’t a Democratic or Republican problem, but rather a bipartisan one. All presidents have an interest in expanding the power of their office, and on the subject of war, presidents from Ronald Reagan to Barack Obama and beyond have succeeded in this aim. The examples are many. Reagan, for instance, sent US troops to invade the small island of Grenada in 1983. His successor, George H.W. Bush, invaded Panama six years later to rid the Central American country of Gen. Manuel Noriega, a former asset of the CIA who was wanted for racketeering and drug trafficking. Bill Clinton undertook several military actions without asking Congress for the power to do so, including air strike campaigns against Saddam Hussein’s Iraq, an intervention in Bosnia and a NATO-led bombing operation in Kosovo. George W. Bush expanded the war on terrorism into Somalia without so much as a debate in Congress. Barack Obama authorised a monthslong US air campaign in Libya.

How have we gotten to the point in which the president — and the president alone — is able to take such weighty action despite everything the Constitution mandates? Just as importantly, why has Congress not made a fuss about it? A big reason is expediency. It’s much easier for lawmakers to watch wars from a distance and critique from the peanut gallery than it is to be a part of the decision-making process. That, after all, would open up these politicians to scrutiny and blame if the wars didn’t go well. It appears like that was the lesson from the 2002 authorisation for the war in Iraq: Whatever you do, pass those burdens on to the president and duck war votes as much as you can. This might make sense for these lawmakers politically. But it does the nation a grave disservice by upending the Constitution, removing the guardrails so critical to stopping bad decisions and turning the country into a de facto monarchy. If only the same lawmakers exhibited the same concern on war powers as they do about spending.