Professor of Law at the University of San Diego School of Law
Dalton Cross Professor in Law at the University of Texas at Austin School of Law
The Constitution’s Article I, Section 8 specifically lists as a power of Congress the power “to declare War,” which unquestionably gives the legislature the power to initiate hostilities. The extent to which this clause limits the President's ability to use military force without Congress’s affirmative approval remains highly contested. Most people agree, at minimum, that the Declare War Clause grants Congress an exclusive power. That is, Presidents cannot, on their own authority, declare war. Although it is somewhat more contested among scholars and commentators, most people also agree that Presidents cannot initiate wars on their own authority (a minority argues that Presidents may initiate uses of force without formally declaring war and that Congress’s exclusive power to “declare war” refers only to issuing a formal proclamation). In the early post-ratification period, the clause’s limit on presidential warmaking was read broadly. Many key founders, including Alexander Hamilton, George Washington and James Madison, referred to the clause’s importance as a limit on presidential power. In the nation’s early conflicts, Congress’s approval was thought necessary – not only for the War of 1812, for which Congress issued a formal declaration, but also for lesser uses of force including the Quasi-War with France in 1798, conflicts with the Barbary States of Tripoli and Algiers, and conflicts with Native American tribes on the Western frontier (all of which were approved by Congress, albeit without formal declarations). In modern times, however, Presidents have used military force without formal declarations or express consent from Congress on multiple occasions. For example, President Truman ordered U.S. forces into combat in Korea; President Reagan ordered the use of military force in, among other places, Libya, Grenada and Lebanon; President George H.W. Bush directed an invasion of Panama to topple the government of Manual Noriega; and President Obama used air strikes to support the ouster of Muammar Qaddafi in Libya. Some commentators argue that, whatever the original meaning of the Declare War Clause, these episodes (among others) establish a modern practice that allows the President considerable independent power to use military force. In general, most scholars and commentators accept that presidential uses of force comport with the Declare War Clause if they come within one of three (or possibly four) categories, though the scope of these categories remains contested. First, Presidents may use military force if specifically authorized by Congress. Authorization may come from a formal declaration of war, but it can also come from a more informal statutory authorization. For example, after the September 11, 2001 attacks, Congress authorized the President to use force against those who launched the attacks and those who supported or assisted them. Sometimes, authorizations are fairly specific (as when Congress authorized President George W. Bush to use force against Iraq); sometimes they are more open-ended, as when Congress authorized the use of force to protect U.S. interests and allies in Southeast Asia, leading to the Vietnam War. Most people agree that presidential actions pursuant to such authorizations are constitutional, although there may be debate about how broadly to read any particular authorization. More controversially, Presidents have claimed authorization from informal or indirect congressional actions, such as approval of military spending, assent by congressional leaders, or even Congress’s failure to object to ongoing hostilities. Second, Presidents are thought to have independent authority to use military force in response to attacks on the United States. At the 1787 Philadelphia convention, Madison described the Declare War Clause as leaving the President with authority to repel sudden attacks. The scope of this power is sharply contested, however. Some commentators think it includes defense against attacks on U.S. citizens or forces abroad, in addition to attacks on U.S. territory; some would extend it to attacks on U.S. allies or U.S. interests, defined broadly. Some commentators think it includes defense against threats as well as actual attacks. Some think it allows the President not only to take defensive measures but also to use offensive force against attackers. Third, Presidents may use other constitutional powers – principally the commander-in-chief power – to deploy U.S. forces in situations that do not amount to war. For example, President Bush’s deployment of troops to Saudi Arabia after Iraq’s invasion of Kuwait in 1990 probably did not implicate the declare war clause because at that point the troops were not involved in combat. Similarly, deployment of U.S. troops as peacekeepers (as President Clinton did in Bosnia) likely does not involve the United States in war and thus does not require Congress’s approval under the Declare War Clause. More controversially, it is claimed that involvement in low-level hostilities may not rise to the level of war in the constitutional sense. President Obama argued on this ground that U.S. participation in the bombing campaign in Libya in 2011 did not require Congress’s authorization. However, this position is strongly disputed by other commentators. A related argument, also controversial, is that using force against non-state actors such as terrorist organizations does not amount to war, and thus does not implicate the Declare War Clause. A fourth potential category is using force under the authority of the United Nations, which some commentators have argued can substitute for approval by Congress. Among other things, President Truman argued that his use of force in Korea was a “police action” to enforce the UN Charter, not a war. However, Presidents have generally not relied on this source of authority and it is less well accepted, even in theory, than the prior categories. The law of the Declare War Clause is unsettled in part because there have been very few judicial decisions interpreting it. In the Prize Cases in 1863, the Supreme Court upheld as a defensive measure President Lincoln’s blockade of the southern states following their attack on Fort Sumter, but was ambiguous as to whether the authority for the blockade came from Article II, from specific statutes Congress had passed in 1795 and 1807, or some combination of both. And in dicta, the Court noted that the President could not begin hostilities without Congress’s approval. Earlier cases, such as Bas v. Tingy (1800), referred generally to Congress’s broad powers over warmaking without giving specific guidance on the President’s power. But in modern times, courts have generally avoided deciding war-initiation cases on the merits, based on rules that limit what types of disputes courts can resolve, such as standing or the political question doctrine. As a result, the precise contours and implications of the Declare War Clause remain unresolved today—leaving resolution of disputes over particular uses of force by the President to the political process.
Editor's Note: This post contains the text of a speech that former Secretary of Homeland Security Jeh Johnson delivered on Feb. 6 at the American Constitution Society (ACS) Symposium at the Georgetown University Law Center. *** I am happy to be part of this symposium. I am a big fan of ACS; I have attended many ACS conferences in the past. And the subject matter—“unilateralist presidencies and submissive legislatures”—is of great interest to me. When I was invited here two months ago, by email received at 4pm on Dec. 16, I accepted at 4:11 that same day, and began an outline of these remarks almost immediately. I was prepared to talk about unilateralist presidencies and submissive legislatures through multiple administrations—Republican and Democrat—to include the events of 9/11, the Iraq War, recess appointments, Libya, Syria, immigration reform by executive action and funding a border wall by executive action. Then, as is the case so often in the Trump era, there was an intervening event—the drone strike on General Soleimani on Jan. 3—to vividly illustrate the point. And the discussion of war powers—which generally occurs only among national security lawyers and professors, Lawfare, Charlie Savage, and a small number of members of Congress—was thrust back on to the front pages. So today my remarks will focus on war powers—specifically the president’s ability to commit the U.S. armed forces into some level of hostilities without congressional authorization. War powers: The intended executive/legislative balance is—in a word—broken. There is no other way to say it. The current scope of the executive’s authority in this space is indeed the product of decades of “unilateralist presidencies and submissive legislatures.” Essentially, Congress has abandoned this space, and the executive, in the name of national security real or perceived, has filled it. As the founding fathers envisioned it in the constitution, Congress declares war, and the president, as commander-in-chief of the military, conducts it. Congress declared the War of 1812.1 Congress declared the Mexican-American War in 1846.2 Congress declared the Spanish-American War in 1898.3 Congress declared World War I in 19174, and war against Japan, Germany and Italy in 1941.5 In recent years Congress had continued to exercise this responsibility, though in more amorphous terms: the 1964 “Gulf of Tonkin Resolution,”6 which was later invoked by the president as the legal justification for the entire Vietnam War, and the various “authorizations for the use of military force” in 1991,7 20018 and 2002.9 Then things changed. Though the world continues to be a dangerous place, 2002 was the last time Congress stepped up to explicitly authorize kinetic military force.10 What happened? Again, the answer can probably be reduced to one word: politics.
Following the 2002 Iraq War vote members of Congress—particularly those running for president—realized that a vote to authorize war can be hazardous and even fatal to one’s political health. The 2008 Democratic presidential primary turned in very large part on the fact that Hillary Clinton voted to authorize the Iraq War and Barack Obama was on record against it. Collectively, members of Congress no longer want to take a hard vote on whether to go to war if they can avoid it. This is not for lack of asking by the executive branch. In 2013 the Obama administration asked for congressional authorization to strike chemical weapons sites in Syria.11 Congress did not act on this request. In 2015 the Obama administration asked for congressional authorization to use military force against ISIS.12 Congress did not act on this request. The notion that Congress declares war and the president conducts it has never been black and white. As reflected in Madison’s notes of the original Constitutional Convention, the framers recognized that, in the absence of congressional authorization, the president should have the limited authority to use the armed forces to “repel sudden attacks.”13 This was conventional wisdom as recently as 2007. In Dec. 2007 Charlie Savage—then of the Boston Globe, now of the New York Times—sent the 2008 presidential candidates a questionnaire asking them to describe their view of the president’s war powers. The Obama campaign took Charlie’s questionnaire seriously, and put considerable time and thought into answering it. Question 2 is still relevant today: Q: In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? A: The President does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation. In retrospect, this answer is wrong. It was far too narrow a construction of the President’s constitutional authority, as the Department of Justice Office of Legal Counsel currently describes it—though candidate Obama disclosed in that same questionnaire that he had the supposed legal experts Laurence Tribe, Cass Sunstein, Jeh Johnson and Greg Craig help him with his homework assignment. Candidate Obama went on to say in response to question 2:
History has shown us time and again, however, that military action is most successful when it is authorized by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action. And, when he became President, Barack Obama did in fact tell his national security team that he strongly preferred military action that had been authorized by Congress. At the time, that meant the 2001 and 2002 AUMFs. And, at least during the time I was General Counsel of the Department of Defense, the Obama Administration construed the 2001 AUMF to provide the domestic legal authority for military force against core al-Qaeda, the Taliban, al-Qaeda in the Arabian Peninsula, and the al-Qaeda elements of al-Shabab in Africa. Both the Bush and Obama administrations construed the 2002 AUMF to provide the domestic legal authority for armed conflict against Saddam Hussein’s regime in Iraq, and for military force against armed militia groups that sought to drive U.S. forces out of Iraq after the regime fell.14 I personally do not believe the 2001 AUMF covers armed conflict against ISIS in Iraq and Syria, or, as some have argued, that the 2002 AUMF for Iraq can be stretched to have justified lethal force against the Iranian General Qasem Soleimani. In the meantime, as Congress has not acted in this space for the last seventeen and a half years, the Department of Justice’s Office of Legal Counsel has had to fill void, to articulate the contours of the President’s domestic legal authority to commit the armed forces in specific situations without congressional authorization. Clearly, OLC’s recent opinions have described that authority in broad terms—far broader than I anticipated when I helped candidate Obama answer Charlie Savage’s questionnaire in 2007. In 2011 OLC opined that “[t]he President had the constitutional authority to direct the use of military force in Libya because he could reasonably determine that such use of force was in the national interest.”15 In that case, what was the national interest? There were two cited by OLC: “preserving regional stability”—isn’t there always someplace in the world where regional stability needs to be preserved? – and supporting the UN Security Council’s credibility and effectiveness. The only limitation spelled out in this OLC opinion was that the operations must be limited in duration and scope, so as not to rise to the level of a full-scale “war,” which only Congress can declare.16 This opinion broke new ground.17 It went far beyond any rationale of self-defense or imminent threat to justify the use of military force without an authorization from Congress. Subsequent opinions of OLC have staked out the same broad authority to address other circumstances. In 2014 OLC issued an opinion that the president had the constitutional authority to launch airstrikes against ISIS, because of the “important national interests” in doing so, and because the “anticipated nature, scope and duration of the military operations did not rise to the level of a ‘war’ within the meaning of the Declaration of War Clause.”18 In 2018 OLC issued an opinion that the president had the authority to direct airstrikes on Syria’s chemical weapons facility for the same reasons.19 Then came the Soleimani strike last month.
As I told Meet The Press, Face the Nation, CNN and others: if one believes everything the government is saying about General Soleimani, under existing OLC opinions I have just recounted here, he was plainly a lawful military objective, and the president had ample constitutional authority to take him out without congressional authorization, as a general in a military engaged in hostilities against U.S. armed forces. But, in the face of conflicting justifications for the strike, uncertainty about whether the strike was the escalation to a full-scale war with Iran, and a President perceived to be compulsive and erratic in his decision-making, many in Congress want to finally reassert themselves, through invocation of the War Powers Resolution. The War Powers Resolution is outdated, plain and simple. Invocation of it now also presents a constitutional conflict between the two political branches of government that has been brewing below the surface for years. As most of you know, the War Powers Resolution was enacted by Congress in 1973, over Richard Nixon’s veto, as an effort to rein in the President during the Vietnam War. Put simply, it says that if a President initiates hostilities without congressional authorization, he must stop if Congress so directs by concurrent resolution, 20 or within 60 days if Congress has not provided that authorization.21 Six days after the Soleimani strike, the House passed concurrent resolution 83, offered by Rep. Elissa Slotkin.22 This resolution invokes Section 5(c) of the War Powers Resolution and purports to require the President to “terminate the use of United States Armed Forces to engage in hostilities in or against Iran” unless authorized by Congress.23 This resolution has virtually no chance of legally binding the president’s actions, as a concurrent resolution is not submitted to the president for signature or veto. Further, the Supreme Court’s 1983 decision in INS v Chadha24 makes clear that Congress itself cannot veto executive action simply by concurrent resolution. Likewise, Sen. Tim Kaine has offered a joint resolution in the Senate that invokes the War Powers Resolution, and that directs the president to remove U.S. armed forces from hostilities against Iran.25 While a joint resolution passed by Congress is traditionally submitted to the president like a bill, even if this one passed both houses it would almost certainly be vetoed by the president and there will not be enough votes in Congress to override it. More fundamentally, the wording of both resolutions purports to limit the president’s authority to use the armed forces without congressional authorization to just defending the U.S. against imminent attack.26 Meanwhile, as I have detailed earlier, OLC says the president’s constitutional authority to use the armed forces without congressional authorization is far broader. This is the constitutional conflict. Don’t look to the courts to resolve such a conflict. The courts will decline to get into the middle of such a constitutional dispute between the two political branches of government, either because of lack of standing by a plaintiff to bring such a lawsuit, or because the lawsuit presents the quintessential political question that courts decline to resolve.27 The War Powers Resolution should be repealed and replaced. I support the proposed War Powers Consultation Act, offered by Sens. McCain, Kaine and King in 2014. This bill strikes all the right balances. It repeals the War Powers Resolution. It preserves the President’s constitutional war powers, puts the onus on Congress to act, and does not outright require the President to withdraw forces in the face of congressional inaction.28 This bill has been sitting in Congress for six years. I wish more in Congress would have an abiding interest in this important subject, and not just for a few weeks after a drone strike. After all, it’s nothing less than the Constitution and matters of life and death. In closing I wish to make several discrete points: First, this discussion has been all about domestic legal authority to engage in armed conflict. Nothing here reflects what international law permits or prohibits. Second, I have done my best here to convey the current view of what the president’s war powers are, not what I believe they ought to be. Particularly in the realm of constitutional law, too many commentators tell us their personal preferences for what the law should be, masquerading as what the law is. Third, and related, just because I tell you there is legal authority to do something doesn’t make it a good idea. During my days at the Pentagon, I signed off on a number of things by saying “legally available but strategically unwise.” Finally, as we discuss presidential war powers here at the Georgetown Law Center in Washington, let’s never forget the bravery and dedication of those on the front lines who must act on the President’s war powers and Congress’ authorizations. In these remarks I make reference to the 2001 AUMF as if it were a sterile legal acronym, but as of today 2,445 members of the U.S. armed forces have given their lives in Afghanistan pursuant to it. Today thousands more are forward-positioned in places like Iraq, Afghanistan, Syria and the Persian Gulf, ready to risk their lives on a moment’s notice to carry out the orders of our Nation’s civilian leaders. It’s time for our leaders to exercise some political courage, and resume the responsibility to stand up and vote yes or no on matters of war and peace. Don’t they owe that to our Nation’s military, whom we count on to exercise real courage in defense of all the rest of us. Thank you.
1 Declaring War between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories, Act of June 18, 1812, ch. 102, 2 Stat. 755. 2 Act Providing for the Prosecution of the existing War between the United States and the Republic of Mexico, Act of May 13, 1846, ch. 16, 9 Stat. 9. 3 Declaring that war exists between the United States of America and the Kingdom of Spain, Act of Apr. 25, 1898, ch. 189, 30 Stat. 364. 4 Declaring that a state of war exists between the Imperial German Government and the Government and the people of the United States and making provision to prosecute the same, Joint Resolution of Apr. 6, 1917, ch. 1, 40 Stat. 1; Declaring that a state of war exists between the Imperial and Royal Austro-Hungarian Government and the Government and the people of the United States, and making provision to prosecute the same, Joint Resolution of Dec. 7, 1917, ch. 1, 40 Stat. 429. 5 Declaring that a state of war exists between the Imperial Government of Japan and the Government and the people of the United States and making provisions to prosecute the same, Joint Resolution of Dec. 8, 1941, ch. 561, 55 Stat. 795. 6 Joint Resolution to promote the maintenance of international peace and security in southeast Asia (Gulf of Tonkin Resolution), Joint Resolution of Aug. 10, 1964, Pub. L. No. 88-408, 78 Stat. 384. 7 Authorization for Use of Military Force Against Iraq Resolution, Joint Resolution of Jan. 14, 1991, Pub. L. No. 102-1, 105 Stat. 3. 8 Authorization for Use of Military Force, Joint Resolution of Sept. 18, 2001, Pub. L. No. 107-40, 115 Stat. 224. 9 Authorization for Use of Military Force Against Iraq Resolution of 2002, Joint Resolution of Oct. 16, 2002, Public Law 107-243, 116 Stat. 1498. 10 This does not include appropriations bills that have funded various military operations over the years. As Section 8(a)(1) of the War Powers Resolution makes plain, appropriations don’t count as authorizations. War Powers Resolution, P.L. 93-148 (H.J. Res 542) § 8(a)(1), 87 Stat. 555, 558. 11 Authorization for the Use of Military Force Against the Government of Syria to Respond to Use of Chemical Weapons, S.J. Res. 21, 113th Cong. § 1 (2013) (failed to receive floor vote). 12 See Joint Resolution, The White House (Feb. 11, 2015) (Obama Proposed Resolution – not adopted), https://obamawhitehouse.archives.gov/sites/default/files/docs/aumf_02112015.pdf; Press Release, Office of the Press Sec’y, Letter from the President—Authorization for the Use of United States Armed Forces in Connection with the Islamic State of Iraq and the Levant, The White House (Feb. 11, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection (accompanying Press Release). 13 See, e.g., Raoul Berger, War-Making by the President, 121 U. Pa. L. Rev. 29, 40 (1972). 14 See, e.g., Declaration and Principles: Future U.S. Commitments to Iraq, Joint Hearing Before the Subcomm. On the Middle East and South Asia and the Subcomm. on Int’l Orgs., Human Rights, and Oversight of the H. Comm. on Foreign Affairs, 110th Cong., 2d Sess. 22-23, 38 (2008) (testimony of David Satterfield, Senior Advisor, Coordinator for Iraq, U.S. State Dep’t) (identifying the AUMF as authority for U.S. “use [of] force on a continuous basis” in Iraq). 15 Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Attorney General, Office of Legal Counsel, to the Attorney General, “Authority to Use Military Force in Libya,” at *1 (Apr. 1, 2011), available at https://www.justice.gov/sites/default/files/olc/opinions/2011/04/31/authority-military-use-in-libya_0.pdf. 16 Id. at *10–14. 17 Jack Goldsmith, Office of Legal Counsel Opinion on Libya Intervention, Lawfare, April 7, 2011, available at: https://www.lawfareblog.com/office-legal-counsel-opinionlibya-intervention. 18 Memorandum Opinion from Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, to the Attorney General, “Authority to Order Targeted Airstrikes Against the Islamic State of Iraq and the Levant,” at *1 (Dec. 30, 2014), available at https://www.justice.gov/olc/file/1108686/download. 19 Memorandum Opinion from Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, to the Attorney General, “April 2018 Airstrikes Against Syrian Chem.-Weapons Facilities,” at *1 (May 31, 2018), available at https://www.justice.gov/olc/opinion/file/1067551/download. 20 War Powers Resolution, P.L. 93-148 (H.J. Res 542) § 5(c), 87 Stat. 555, 556. 21 Id. at § 5(b). 22 Directing the President pursuant to section 5(c) of the War Powers Resolution to terminate the use of United States Armed Forces to engage in hostilities in or against Iran, H.Con.Res. 83, 116th Cong. (2020). 23 Id. at §§ 1(b), 1(b)(1). 24 462 U.S. 919 (1983). 25 A joint resolution to direct the removal of United States Armed Forces from hostilities against the Islamic Republic of Iran that have not been authorized by Congress, S.J.Res. 68, 116th Cong. (2020). 26 Id. at § 2(b); H.Con.Res. 83 at § 1(b)(2). 27 See, e.g., Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 44 (D.D.C. 2010) (“[The political question doctrine]…excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” El–Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 840 (D.C. Cir. 2010) (quoting Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 (1986))); Sadi v. Obama, No. 15-11314, 2015 WL 3605106, at *4 (E.D. Mich. June 8, 2015) (similar quotation); Baker v. Carr, 369 U.S. 186, 210 (1962) (“The nonjusticiability of a political question is primarily a function of the separation of powers.”); U. S. ex rel. Joseph v. Cannon, 642 F.2d 1373, 1379 (D.C. Cir. 1981) (“courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature”). 28 See War Powers Consultation Act of 2014, S. Res. 1939, 113th Cong. (2014) (failed to receive floor vote).