When it comes to the use of military force, there has been a tug of war between Congress and the President. According to the Constitution, the power to declare war is reserved to Congress and the President is the Commander-in-Chief. Members of Congress argue that if a President does not seek approval for military action, the action is not lawful. On the other side of the debate, some say that the President, as Commander in Chief, should be able to take military action without needing approval.
On April 6, President Donald Trump ordered an airfield in Syria to be hit with about 60 cruise missiles in response to Bashar al-Assad’s use of weapons of mass destruction (sarin gas). This military action has renewed the debate on this topic. Since Trump had not received approval for this action, Congressional members have issued statements reminding him that he needs to seek approval and failure to do so would be unlawful.
While the Constitution says that Congress has the power to declare war, the question of whether or not the President requires approval still has some unanswered questions. For most of US history, the question was not a major debate. Presidents did commit forces to military actions but sought approval even after the fact. Until the end of World War II, the United States did not maintain a large standing army. When a conflict ended, the troops would demobilize.
It has only been in the last 70 years has it become a debate. After the invasion of South Korea by North Korea in 1950, President Harry Truman created the precedent by opting to not seek approval for military action. Truman’s Secretary of State, Acheson, believed that Congress would be hesitant to give approval and doing so would make it more difficult to deal with the Korean crisis. This precedent would be used later to justify entering the Vietnam war.
In 1973, Congress passed the War Powers Resolution. The resolution was passed in response to the President committing to the Korean and Vietnam wars. These wars involved in long drawn out conflicts where there had not been any declaration of war. There was a concern over the erosion of Congressional authority. This resolution requires that, in the absence of a declaration of war, the President must report to Congress within 48 hours of military action and must remove forces within 60 days unless Congress approves otherwise.
Some Constitutional scholars believe that the resolution is unconstitutional as it restricts the President’s authority as Commander-in-Chief. Additionally, in some cases, it has afforded the President greater latitude to use military force. The resolution has not been effective in stopping Presidents from taking unauthorized military actions and the courts have avoided in becoming involved in the debate.
For example, President Bill Clinton engaged US troops in Kosovo during the 1990s to participate in NATO peacekeeping missions. Clinton never received approval and did not remove troops after 60 days. President Barack Obama took a liberal interpretation of authorizations for 9/11 related military actions to justify airstrikes and other actions against ISIS in Iraq and Syria without approval.
References and Further Reading
- Trump’s Syria airstrikes: constitutional or not?
- FindLaw Forum: President needs congressional approval to declare war on Iraq
- ‘The Congress Shall Have Power … to Declare War’
- Understanding Authorizations for the Use of Military Force