The 45th president is unlikely to pick up the phone to call the 44th president, but if Donald Trump ever did, he and Barack Obama would be able to commiserate over one thing: That junior senator from Virginia sure is pesky about the Constitution.
On Thursday, the same day that Iran shot down an American military drone, U.S. Sen. Tim Kaine, D-Virginia, took to the Senate floor to deliver a speech about the rising tensions between the two countries.
More importantly, though, it was a speech about an issue that Kaine has focused on throughout his time in Washington — an issue that he raised as forcefully against fellow Democrat Obama as he is now with Republican Trump.
That issue is: Who has the power to take the country into war, the president or the Congress?
In the present case, Kaine declared Thursday: “I think another war in the Middle East now would be a disaster. I think it would be catastrophic for the U.S. to tear up a diplomatic deal, and then look at our troops in the face and say, because we tore up a diplomatic deal, you have to now go fight another war when we’ve been in the Middle East for 18 years. I think it would represent just about as catastrophic a failure of American foreign policy as you could imagine.”
He went on to declare who’d be the winner of any military clash between the U.S. and Iran: China. “When we take our eye off of our principal competitor and we engage in wars we needn’t be in, China will be the victor in that,” he said. Then he came to the crux of his argument: “If the President feels differently about that, if some of his advisers think we ought to be about regime change in Iran, as they’ve said. If some of them think it would be easy to beat Iran in a war, as they’ve said. If some colleagues here on the floor think we should be in a war with Iran, as some have publicly urged, let them come to the floor of the United States Senate in full view of the American people and make that argument . . . And I’ll make my argument about why a new war in the Middle East would be catastrophic and see who wants to stand up and make the argument that a new war in the Middle East is something that this great nation should do. And if we then have that argument, and cast a vote, and I lose, I’m going to be disappointed — but we will have done what the Constitution suggests that we must do.”
Actually, the Constitution does more than “suggest.” Article I, Section 8, Clause 11 of the Constitution says quite clearly and plainly: “The Congress shall have power to” followed by a long list of things. One of those is “to declare war.” The president may be commander-in-chief of the armed forces but only Congress can declare war. This was an important separation of powers to our founders, who were well acquainted with British kings dispatching armies to wage wars whenever and wherever they pleased. It was also a separation of powers that worked much better in the more leisurely 18th century of horseback warfare than it does today in a world where a missile on the other side of the world is only 30 minutes away from wiping out an American city.
So how should that constitutional provision work today? Can the president, on his own authority as commander-in-chief, order a retaliatory strike against Iran (as Trump says he did, and then called off)? Certainly a president can respond to immediate threats, but what constitutes immediate? Can he order a sustained bombing campaign? At what point would Congress need to declare war — or restrain a trigger-happy president? Is that only if we envisioned invading Iran? What if a single retaliatory strike produced an Iranian response that turned into an actual war? Would it mean that presidential action just rendered part of the Constitution moot?
The answer is that modern presidents — both Democrats and Republicans —have simply ignored that part of the Constitution. Harry Truman didn’t ask Congress to declare war against North Korea in 1950; he described that was only a “police action” although it sure looked like a war to those on the ground. In the aftermath of another undeclared war in Vietnam, Congress passed the War Powers Act in 1973 to set some limits on a president’s war-making ability — with limited success. Bill Clinton unleashed a bombing campaign in the Balkans anyway. Congress didn’t formally declare war when the U.S. went to war in the Persian Gulf in 1991 or Iraq in 2003 — but did pass resolutions authorizing the use of force, which seems to follow the spirit of the Constitution.
Congress also passed a similar use of force resolution after the terrorist attacks of Sept. 11, 2001. George W. Bush used that to invade Afghanistan. The problem is that presidents since — both Obama and Trump — have taken that resolution to be a blank check for military operations anywhere in the world. In theory, even the 1991 authorization of force against Iraq for its invasion of Kuwait is still in force, even though Kuwait has long since been liberated. A president who wants to bomb something anywhere near Iraq can now cite three different resolutions, even the youngest of which is now nearly as old as some of the service members who might wind up carrying out those orders.
That’s what prompted Kaine to speak out against Obama back in 2014 when the president ordered military operations against the so-called Islamic State that had carved out a “caliphate” in parts of Iraq and Syria. Kaine’s argument: The Islamic State didn’t exist in 2001, so it wasn’t covered by that vote, or any other. It was a new threat that required a new vote.
Obama wasn’t very happy about that but eventually sent a proposed resolution to Congress — which Congress never voted on one way or another. Why not? Here’s the dirty little secret: Congress likes not having responsibility for military adventures. If things go poorly, no one gets tagged with having voted for a disaster. Kaine is one of the few legislators in Washington who want to force Congress to live up to its constitutional duty. This isn’t a partisan issue, just not one with a lot of support on either side. In March, he and a Republican senator — Todd Young of Indiana — introduced a bill to repeal the previous authorizations for force against Iraq. Naturally, it’s gone nowhere.
Trump’s instincts so far have been remarkably sound and restrained (far sounder than some of his more hawkish advisers). Bombing Iran might well start a war. But Kaine’s right: If that’s the goal, Congress needs to declare that. Not because we say so, but because the Constitution says so.