But here we are, in a world of congressional atrophy and seemingly unlimited Presidential war-making power. This lopsided situation is not solely of Trump’s making. Congress has not formally declared war since the Second World War, as the executive branch, under Presidents of both parties, has asserted ever-increasing authority to engage in the unilateral use of military force. Since that time, congressional acquiescence has generally taken the form of an authorization for the use of military force—when it has happened at all. To a certain extent, this is a logical and necessary outgrowth of technological innovations, and of the need for speed and flexibility in an age of nuclear weapons and global terrorism. The congressional power to declare war, like the rest of the Constitution, is not, to paraphrase Justice Robert Jackson, a suicide pact. Indeed, the Framers recognized these imperatives, along with the tension inherent between congressional authority and the President’s role as Commander-in-Chief. At the Constitutional Convention, they rewrote the draft language of the document, which originally assigned Congress the power to “make war.” According to Madison’s notes, “make” was changed to “declare,” “leaving to the Executive the power to repel sudden attacks.”
Decade after decade, the modern Congress has allowed its authority to be eroded, with only tiny and largely ineffective peeps of protest. In 1989, after the Panamanian General Manuel Noriega refused to honor election results, President George H. W. Bush ordered thousands of troops to Panama to, among other things, capture Noriega to stand trial for drug trafficking in the United States. In 1999, President Bill Clinton instituted an air campaign, joined by NATO allies, to stop ethnic cleansing in Kosovo; the operation continued beyond the sixty-day deadline to obtain congressional approval for introducing U.S. troops into hostilities imposed by the 1973 War Powers Resolution. In 2011, President Barack Obama launched missile attacks against military sites in Libya; Obama called the action “a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster.” During Trump’s first term, he conducted air strikes against a Syrian airfield in 2017, and again in 2018 on chemical-weapons facilities, the second time joined by the United Kingdom and France. In 2021, President Joe Biden, invoking his constitutional authority as Commander-in-Chief, ordered “defensive” air strikes against Iranian-backed militias in Iraq and Syria.
These actions were typically abetted by legal opinions issued by the Justice Department’s Office of Legal Counsel; each opinion built on its predecessor to justify increasingly elastic interpretations of Presidential power. Jack Goldsmith, a Harvard law professor and a head of that office under President George W. Bush, has observed that the O.L.C. opinions on Presidential use of force “are famously promiscuously permissive.” The first part of O.L.C.’s analysis is whether the planned military activity furthers a “sufficiently important national interest.” Somehow, it always does. The second part is whether the “nature, scope and duration” of the expected use of force rises to the level of “ ‘war’ in a constitutional sense.” Somehow, it never does.
In considering whether military action amounts to a war, the O.L.C.’s lawyers examine factors such as whether there will be ground troops, the likely number of casualties, the scope of the mission (for instance, targeted strikes versus regime change), and the risk of escalation. As a report by the Congressional Research Service summarized, “The executive branch has never publicly concluded that a military operation crossed the threshold into an unconstitutional war, but it has opined that a variety of military operations do not reach this level. For example, O.L.C. concluded that deployments of 20,000 ground forces, a two-week air campaign including 2,300 combat missions, and an air campaign involving over 600 missiles and precision-guided munitions did not amount to wars in the constitutional sense.” Adding insult to congressional injury, “even when Congress enacted authorizations for use of military force—including in the Vietnam War, Persian Gulf War of 1991, post-September 11 conflict of Afghanistan, and the 2003 Iraq War—each Presidential Administration claimed that they possessed independent constitutional authority to engage in those conflicts even if Congress had not authorized them.” When Trump, in 2020, ordered the targeted killing of the Iranian general Qasem Soleimani while Soleimani was on a trip to Baghdad, the O.L.C. stretched the 2002 Authorization for Use of Military Force in Iraq to justify the killing of the Iranian leader. The O.L.C.’s interpretations are also, for the most part, unchallengeable. Since at least the war in Vietnam, courts have refused to referee disputes between the President and Congress over war powers.
