Biden Doesn’t Need to Restrain His War Powers
This essay was co-authored with John Yoo and originally published on March 12, 2022 by National Review. John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. He is the author of Defender-in-Chief: Donald Trump’s Fight for Presidential Power.
President Biden’s airstrike against a pro-Iran militia base in Syria on February 26 may do little to change the balance of power in the Middle East. A few bombs, which allegedly killed or wounded one or two fighters, did little to deter Tehran’s low-intensity campaign against the U.S. military in Iraq. Nevertheless, the Biden administration hopes that its light tap on militant wrists that will restore the Iran nuclear deal and usher in a new understanding with the mullahs over the Middle East.
Biden’s strike reflects similar ambitions to reset the constitutional order at home. Like the strike’s strategic effects, however, it will change little in the real world. In the wake of the attacks, the new president last Friday agreed to demands — raised over the years by both progressives and libertarians (including several prominent National Review editors) — to repeal the 2001 and 2002 congressional authorizations for the use of military force (AUMFs) used to justify the strike. Biden never raised a public complaint about these AUMFs when the Obama administration invoked them to defend its interventions in the Syrian civil war or its sweeping drone-strike campaign against terrorists. But now that he is in charge, apparently he seeks to return to his roots as a critic of presidential power.
If all that were at stake was whether an old partisan warrior might seek to bring his actions into line with his ideological past, Biden’s first military strike would perhaps prove as harmless constitutionally as it was strategically. But he risks far more. He would become the first president since Jimmy Carter to willingly give up legal authority to defend American interests at home. And like Carter, Biden could soon find himself torn between his commitment to abstract, misguided principles and the real-world need to protect the nation, its troops, and its allies. He would undermine the core attributes of the presidency — the ability to act with speed, decision, and dispatch — when they must come to the fore in defending the nation’s security and foreign policy.
According to press reports, Biden triggered anger on both sides of the aisle by failing to consult Congress or secure its approval before launching the airstrikes in Syria. The Biden administration correctly justified the strikes as lawful self-defense, well within the president’s constitutional power, in response to attacks on American troops in Iraq. The parallel with President Trump’s limited but effective uses of military force to deter Iran was unmistakable. But if Trump did it, then, axiomatically, it must be wrong. So several senators, such as Todd Young (R., Ind.) and 2016 vice presidential candidate Tim Kaine (D., Va.), seized the occasion to prod Biden to reopen the issue of the War Powers Resolution (WPR) of 1973.
The senators are proposing to repeal two existing statutes (AUMFs) that were enacted in 2001 and 2002 to enable military deployments against al-Qaeda and its affiliates and, later, against Iraq. But Biden seems to be contemplating more than a mere rollback or updating of the AUMFs. He appears to be well-disposed to some revised form of the WPR. If that is indeed his idea, then it is not new, not necessary, not practicable, and (likely) not constitutional.
Unlike past presidents, Biden did not respond to the usual congressional howls of protest by stoutly defending his constitutional authority to use force abroad. Instead, he plans for a new form of the 1973 War Powers Resolution. “We are committed to working with Congress to ensure that the authorizations for the use of military force currently on the books are replaced with a narrow and specific framework that will ensure we can protect Americans from terrorist threats while ending the forever wars,” White House spokeswoman Jennifer Psaki wrote on Twitter on Friday.
The WPR, which allegedly terminates uses of force abroad after 60 days (unless approved by Congress), was enacted by a hostile Congress over President Richard Nixon’s veto. It has met stiff resistance from the executive branch for almost half a century. Nevertheless, Biden has long been in favor of “improving” the WPR. As a senator in 1988, he co-authored an academic article outlining what he saw as a better version. Now, as president, he seems prepared to break with the consistent practice of his Oval Office predecessors and enable Congress to constrain the executive’s authority to use American military power, even in defense of U.S. troops stationed abroad.
Biden may intend to stay true to his senatorial tendencies, but he misunderstands the duty of a president to protect his office for his successors. If his intention is to protect the asserted war powers of Congress, then the AUMFs of 2001 and 2002 already succeeded. Both were acts of Congress that the executive branch requested and obtained before undertaking large-scale hostilities in Afghanistan and Iraq. Rather than evidence of an unbridled presidential appetite to make war unilaterally, the AUMFs stand as examples of cooperation between the executive and Congress on taking the nation into a major war. Biden wrote in his 1988 article that he wanted “a system embodying the sound constitutional principle that sustained hostilities should be based on affirmative and specific congressional approval.” If that is the system he wants, then the practice of the George W. Bush administration (in which we both served) has already met his terms.
Congress does not need a new WPR to protect its constitutional prerogatives in war. Congress’s most effective method of countering the executive is through the power of the purse. As James Madison noted in Federalist 58, that power “may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” Congress brought the war in Vietnam to an end (after having first authorized it in the Tonkin Gulf Resolution) simply by defunding it.
Congress can also bring a president to heel through the threat of an impeachment. Certainly, that threat was lively in President George H. W. Bush’s mind in early 1991: In his diary he mentions it five times in the month leading up to the congressional vote. “Congress is in a turmoil, and I am more determined than ever to do what I have to do,” Bush wrote in his diary before the vote. “If they are not going to bite the bullet, I am. They can file impeachment papers if they want to.” And after the double impeachment of Donald Trump, the threshold is much lower now than it was in 1991.
True, presidents — including now Biden himself — have used military force without prior approval from, or even consultation with, Congress. But rather than representing a usurpation of legislative power, such actions are valid exercises of the president’s unique constitutional authority in military and foreign affairs. Often the military operations in question require extreme secrecy: Both Biden’s and Trump’s did. If a revised WPR required consultation with Congress before they could be ordered — and still more if it required public debate in Congress — secrecy would be impossible. The results would obviously damage U.S. national security. And if President Biden wants to consult Congress before he launches an airstrike, there is nothing to stop him from picking up the phone and seeking the advice of congressional leaders first.
Biden has occupied every point on the compass over the question of war powers. The Obama-Biden administration deployed U.S. military power in Syria and Africa with no specific congressional authorization beforehand. In 2011, President Obama ordered U.S. airstrikes against Libya without approval from Congress — not to protect U.S. lives, but to shield Libyan civilians. The Justice Department in the Obama-Biden administration took the position effectively that Congress did not have to authorize “small” presidential wars. Is Biden now going to repudiate the positions that were taken then?
Biden would have to repudiate the lessons of history and the framing of the Constitution. Throughout American history, neither presidents nor Congresses have demanded congressional approval or a declaration of war before the U.S. armed forces went into battle. The United States has declared war in only five cases — the War of 1812, the Mexican–American and Spanish–American wars, and World Wars I and II — but has used force abroad more than 100 times. (Add to the list Biden’s strike in Syria, along with Trump’s attack on Syrian targets in 2017 and 2018.)
The U.S. armed forces have fought American Indians, Barbary pirates, and Russian revolutionaries without any congressional approval. Harry Truman did not wait on Congress to intervene in Korea in 1950; Dwight Eisenhower threatened nuclear war with Communist China; JFK imposed a quarantine on Cuba during the missile crisis; LBJ sent troops to Latin America; and Richard Nixon expanded the Vietnam conflict in Laos and Cambodia. President Reagan invaded Grenada and attacked Libya; George H. W. Bush sent troops after Iraq’s invasion of Kuwait; Bill Clinton intervened in the Balkans. The 1991 Persian Gulf war, the 2001 invasion of Afghanistan, and the 2003 Iraq war received legislative “authorization” but not declarations of war. The practice of presidential initiative, followed by congressional acquiescence, has spanned both Democratic and Republican administrations and reaches back to Presidents Abraham Lincoln, Thomas Jefferson, and George Washington.
President Biden would discard that long constitutional history in the interests of appeasing progressives in the Democratic Party and bringing himself into harmony with his senatorial past. But there are good reasons to maintain the settled practice worked out between the elected branches over time. The demands of national security and foreign affairs require a different system from the domestic balance of powers between president and Congress. In the case of regulation or the economy, as we are witnessing with Congress’s blowout $1.9 trillion COVID stimulus bill, Congress enacts policy first under its Article I powers to legislate and the president implements it under his Article II duty to “take Care that the Laws be faithfully executed.”
But the Framers decided to reverse this system when it came to war. Article I of the Constitution sets out specific procedures for passing laws or ratifying constitutional amendments, for example. There are none for waging war, because the Framers expected the president and Congress to struggle for primacy through the national political process. Other parts of the Constitution support this reading. Article I, Section 10, for example, declares that the states shall not “engage” in war “without the consent of Congress” unless they are “actually invaded, or in such imminent danger as will not admit of delay.” This provision creates exactly the limits desired by anti-war critics, complete with an exception for self-defense. If the Framers had wanted to require congressional authorization for all offensive wars, as progressives and libertarians insist, they simply could have added “President” to “states” in Article I, Section 10.
The Framers did not follow that path, because they held a sophisticated understanding of the nature of executive power and the foreign dangers to our national security. As Alexander Hamilton wrote in Federalist 74, “the direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.” Presidents should conduct war, he wrote, because they could act with “decision, activity, secrecy, and despatch.” In Federalist 70, Hamilton wrote that “energy in the executive is a leading character in the definition of good government. . . . It is essential to the protection of the community against foreign attacks.”
As Hamilton understood, national security and foreign affairs are too unpredictable and too dear to subject to the immediate control of a collective body. With its multiple veto points and its space and time for disagreement, Congress is designed to engage in deliberation that will ultimately represent a national consensus. National security does not lend itself to the luxuries of time. It rarely can be governed by preexisting legislation. It demands swift, decisive action under pressures of time and circumstance. Even if Congress has access to the same information that the president does, its decentralized structure and hurdles to action can paralyze the nation while foreign threats grow.
Nor does Congress have any political incentive to make the difficult decisions about whether to launch military hostilities. Members of Congress, who are interested in keeping their seats at the next election, do not want to take stands on controversial issues where the future is uncertain. They will prefer that the president take the political risks and suffer any responsibility for failure. Nevertheless, presidents still must have Congress’s cooperation to fully take the nation to war. Only Congress can raise the military, which gives it the power to delay or even stop any conflict. Before World War II, presidents had to appeal to Congress to build any army or navy on the spot to fight a war. After 1945, however, Congress has funded the massive, offensive military that makes Biden’s strikes, like those of Trump and Obama, possible. If Congress wants to reduce a president’s ability to so easily wage war, all it need do is build a smaller, defensive military without the tools of power projection that the military currently enjoys.
Congress can also halt any meaningful armed conflict through its power of the purse. If Congress disagrees with unilateral executive action, it needs only to cut off funds. Congress can just sit on its hands and refuse to pass any new funding and, given the expense of modern war, conflict will grind to a halt. Even the Kosovo war, which lasted little more than two months, could not continue without a special appropriation from Congress.
The Framers expected Congress’s power of the purse to serve as the primary check on presidential war. During the 1788 Virginia ratifying convention, Patrick Henry attacked the presidency for its control over the military. James Madison responded: “The sword is in the hands of the British king; the purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.”
A radical change in the system for making war might appease Biden’s progressive allies and, though surely not his intention, libertarians. But it could also seriously threaten American national security. In order to prevent an attack on the U.S., its personnel, or its allies, the president must enjoy the flexibility to use force quickly and swiftly. Congressional deliberation, which leads only to passivity and isolation, would come at the price of speed and secrecy. By seeking to adopt a legislative mindset in a world without legislative rules, Biden risks handicapping not just his own presidency but those of his successors.