President Trump’s decision to blow up a top Iranian general has inadvertently thrust back into the spotlight Hillary Clinton’s 2016 running mate.
Politics is funny that way, although this is deadly serious business.
By what authority did Trump order the death of a top official of a country that we’re not at war with?
Trump officially notified Congress of the drone strike under the terms of the War Powers Act of 1973, which Congress passed over Richard Nixon’s veto to prevent future undeclared wars such as Vietnam — and which presidents since have abided by, even if they didn’t necessarily believe that it’s constitutional.
Here is an instance where our 18th century Constitution doesn’t fit well with the technological realities of the 21st century.
The authors of the Constitution were quite clear: Only Congress should be able to declare war. They’d seen enough kings engage in military adventurism; they didn’t want presidents to be able to do that. So that’s what they wrote into the Constitution. And that’s what they said in every forum available to them in the 1700s. “The power to declare war, including the power of judging the causes of war is fully and exclusively vested in the legislature,” James Madison wrote in 1793. “The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”
Turns out, that was easier said in the 18th century than done in other ones. Declaring war was a more leisurely act those days. In an era of nuclear buttons, it’s not always practical to wait for Congress. Even in the 1700s, if a hostile fleet had been spotted sailing up the Chesapeake Bay, nobody would have complained if George Washington had mustered his forces without congressional approval. Presidents, as commanders-in-chief, are expected to be able to act to defend the nation’s security. And that’s what Trump has said he was doing here. In the process, though, did his drone strike constitute an act of war without benefit of a congressional declaration? If so, that effectively bypasses the constitutional order of things to create an “Alice In Wonderland” situation of “sentence first, verdict afterwards.”
This is part of what Congress was trying to figure out with the War Powers Act: Presidents need the ability to respond quickly, but Congress still needs to have its constitutional say on whether we go to war. Can those two things be reconciled? The act requires presidents to notify Congress of any military actions (which Trump has done). More significantly, it forbids armed forces from engaging in the conflict for more than 60 days without authorization from Congress.
It’s this provision which U.S. Sen. Tim Kaine, D-Virginia, is now attempting to enforce. He’s introduced a 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.” Unlike most things introduced in Congress, this one may actually get voted on, even if only in the indirect form of a procedural motion.
On the House side, Speaker Nancy Pelosi has said she’ll bring a similar resolution before the House this week.
Pelosi’s concern for constitutional niceties is opportunistic; she showed no such interest when Barack Obama engaged in a military actions in the Mideast.
Kaine, though, is being completely consistent — because he bucked his own party to insist on congressional votes under Obama. He didn’t get them but that’s beside the point. Throughout his Senate career, Kaine has been a stickler for following the constitutional order on war. James Madison would be proud.
The United States hasn’t formally declared war on anyone since World War II — more precisely, on June 5, 1942, when it added Bulgaria, Hungary and Romania to the list of countries we were at war with. Learning from the lessons of Vietnam (and before that, Korea), Congress more recently has passed resolutions called “authorization for the use of military force” — which may not technically be declarations of war, but satisfy the spirit of the constitutional mandate. However, the nature of these new engagements isn’t like the traditional wars of the past. They’ve become, as Trump has termed them, “endless wars.”
After the terrorist attacks of Sept. 11, 2001, Congress passed an authorization for the use of force against Al-Qaeda and — the operative phrase — “any associated forces.” In 2002, it passed another to authorize the use of force to oust Saddam Hussein from Iraq. Hussein is long since gone, and Al-Qaeda has been supplanted by other terrorist groups, but both Obama and Trump have cited those resolutions as authority for a wide variety of military actions that are far afield from their original purpose. In 2014, Obama launched air strikes against the so-called Islamic State — citing both the 2001 “war on terror” resolution and the 2002 Iraq resolution as his authority. That was too much for Kaine. The Islamic State was a threat, he agreed, but it didn’t exist in 2001, so couldn’t have been covered by that resolution, the “any associated forces” languages notwithstanding. Does that language give presidents power to bomb anyone anywhere in perpetuity? And just because the Islamic State was in part of Iraq, does that mean it’s covered by the 2002 congressional vote to oust Saddam? Kaine insisted Congress should vote to authorize Obama’s bombing campaign — but it never did. He’s pushed ever since to update those two authorizations — and narrow their scope — but neither has gone through.
Both Democrats and Republicans in Congress have been eager to invoke the War Powers Act when there’s a president of the other party — Republicans tried to halt Bill Clinton’s bombing in Kosovo in 1999 — but content to look the other way for a president of their party. And neither party has been keen to vote on any new authorizations of force. Here’s one big reason: If they vote for one, they own part of whatever happens. It’s a lot easier to sit back and blame the president if something goes wrong. That’s not what the Constitution intended, though.
Was Trump right in ordering the death of Gen. Qassem Soleimani? That’s a matter of opinion — and we don’t know the full cost-benefit analysis until we know what consequences spin out of that drone strike. But Kaine seems absolutely right when he insists that Congress needs to vote on any further military action against Iran. Not because it’s a matter of being pro-Trump or anti-Trump, but because that’s what the Constitution requires.