Washington is in the early innings of what has the potential to become the most significant congressional claw-back of constitutional war powers authority since Vietnam. Following the U.S. drone strike that killed Iranian Qods Force leader Qassim Suleimani on January 3, the Republican-led Senate recently voted 55-45 last month to block funding for the use of military force against Tehran, absent explicit approval by Capitol Hill. While President Trump has vowed to veto the legislation—a version of which separately passed the House of Representatives earlier in February—this flare-up is likely a preview of bigger battles to come, regardless of who wins the November election.
The attempt by Congress to restrict the White House’s freedom of maneuver on Iran has been characterized as a backlash against its shifting justifications for the Suleimani drone strike or as a proxy for wider discontent with the Trump Administration’s unorthodox foreign policy. Such explanations, however, fail to situate the vote within its proper historical context.
The great legal scholar Edwin Corwin famously described the U.S. Constitution as “an invitation to struggle for the privilege of directing foreign policy,” and indeed, from the earliest days of American democracy, Presidents and Congresses have wrestled with each other on the appropriate balance of power between their respective branches of government when it comes to military decision-making. In contrast to other subjects of constitutional dispute that have been refereed by the judiciary, furthermore, the question of war powers has largely been left to the executive and legislature to sort out among themselves.
Today’s tensions are squarely in keeping with that tradition. In particular, as in the 1970s, today’s congressional assertiveness takes place after a period in which a succession of Presidents of both parties made expansive war powers claims with minimal resistance, and sometimes active support, from Capitol Hill. Thus, in March 1999 President Bill Clinton intervened to stop ethnic cleansing in Kosovo without a congressional vote of approval, while the post-9/11 Authorization for Use of Military Force—or AUMF in wonk-speak—handed a sweeping, open-ended grant to the Bush Administration to wage the war on terrorism as it saw fit.
Later, Democrats began to challenge the Bush Administration’s assertion it could target any terrorist, anywhere in the world, indefinitely—that is, until the Obama Administration came to office and made essentially the same claim. Obama then went to war in Libya in 2011 against Muammar Qaddafi’s regime without congressional authorization, claiming that a seven-month air campaign by a multinational coalition did not amount to hostilities under the 1973 War Powers Resolution. In a small irony, the Trump Administration drew on the same legal analysis to justify not going to Congress before launching a more limited set of airstrikes against Bashir al-Asad’s regime for its use of chemical weapons in 2017.
Both Obama and Trump, furthermore, prosecuted a years-long campaign against the Islamic State without formal congressional approval. Rather, they argued inter alia that they had inherent authority to do so as commanders-in-chief and that Congress had already blessed the war implicitly through the 2001 post-9/11 AUMF and 2002 Iraq War AUMF—even though ISIS did not come into existence until more than a decade after these measures were passed.
Now it seems the pendulum has begun to swing in the opposite direction, with signs of a growing bipartisan consensus on Capitol Hill that it is time to flex congressional muscles and rein in the White House. In addition to the Iran vote earlier this month, a similar coalition of Democrats and Republicans came together in both chambers last year to pass a resolution that would have forced the United States to end its involvement in the Saudi-led war in Yemen, provoking Trump’s second-ever veto. And the House of Representatives recently voted, 236 to 155, to revoke the 2002 AUMF that approved the war in Iraq—another signal of growing congressional determination to pare back the permissions that it previously handed to the White House.
As former Senate staffers, we agree that American national security can be well-served through an engaged and energetic legislative branch. However, the difficulty with much of the new congressional activism is that it frequently seeks to restrain the executive as a foreign policy end unto itself. That is an understandable instinct, given how poorly many of the military endeavors undertaken by Presidents over the past 20 years have turned out, especially relative to hopeful predictions going in. And at times, putting the brakes on the White House is indeed an appropriate and legitimate role for Capitol Hill, whether opposing an ill-considered war or curtailing U.S. involvement in a misbegotten one.
But when it comes to matters of war, there is much more that an assertive Congress should be doing. In particular, Congress has unique capacity and responsibility to exercise robust and substantive oversight of America’s increasingly complex array of worldwide military operations—both current and prospective. This includes investigating, identifying, and challenging flawed or failing assumptions in U.S. plans, examining alternative strategies, and cultivating innovative ideas that challenge the status quo.
This is especially important given that it is Congress alone that can peer through the secrecy that necessarily cloaks much of U.S. military planning and national security strategy, as well as the natural tendency of the Executive Branch, under every Administration, to convince itself that whatever it is doing is working.
This requires individual Members of Congress who are willing to devote the time and energy necessary to develop deep knowledge and expertise about the U.S. military, the conflicts and competitions in which it is engaged, and the future fights it may be called upon to undertake. It also means representatives personally traveling to war zones and combatant commands, consulting regularly with both U.S. officials and outside policy experts, and engaging with key allies and partners, as well as building up the strongest possible professional committee and personal staffs to aid them in these efforts.
How will the Trump Administration’s agreement with the Taliban verify that the group is in fact no longer permitting international terrorists to operate on Afghan territory under its control—and how will it respond if they renege? Should the U.S. military footprint in Africa be slashed in order to devote greater resources to great-power competition with China and Russia? Is the Defense Department acquiring the right mix of capabilities in the face of disruptive technological advances by Beijing and Moscow? On each these vital national security questions and more, rigorous and expert congressional scrutiny is vital.
Moreover, while the recent spate of activism on Capitol Hill has tended to be formalistic—invoking the 1973 War Powers Resolution, attempting to revoke old AUMFs or pass new ones, using the power of the purse—Congress has subtler tools that are available to influence national security decision-making.
Hearings, speeches, op-eds, congressional delegations, informal discussions with Administration officials, engagement with foreign government and civil society representatives, the congressional bully pulpit—all of these informal instruments can often do more to shape American defense policy for the better than an up-or-down AUMF vote.
In the past, Congress has also exerted influence over U.S. foreign policy by reordering the national security apparatus itself. In the 1970s, for instance, in response to what it regarded as insufficient consideration of human rights considerations under the Nixon Administration, Capitol Hill legislated the creation of new offices and reporting requirements inside the executive branch to elevate the issue, which persist to this day. The current Defense Department structure—with its emphasis on joint operations—is the product of the transformational 1986 Goldwater-Nichols Act.
Needless to say, not every foreign policy idea to bubble up from Capitol Hill is a good one. Nor is it the place of Congress to try to micromanage the military battlefield through legislation. Rather, it should be the mission of the Congress to pose tough, well-informed questions to the Executive Branch, illuminate and demand accountability for failures, and encourage fresh thinking.
With power comes responsibility—and as members of Congress seek to reassert greater sway over military matters, they must be ready for the heightened obligations that will come with it. Ultimately, congressional activism is likely to be judged less by its ability to stop the executive branch from using American power in the world than by its capacity to guide smarter, more effective expressions of it.
