Congress should decide if we go to war with Iran

The founders gave the first branch war powers for a reason

Within hours, President Trump may unilaterally decide to bring the United States into an ongoing war with a country of more than 90 million people.

“Nobody knows what I’m going to do,” said the president an hour ago. That seems to be true. Certainly no one has any idea where such a decision could eventually lead. The last American wars in the Middle East and Central Asia spiraled into decades of unintended consequences and destabilization beyond anything the Bush administration anticipated at the time.

And yet here we are — waiting for the president’s mixed signals to clear and for him to decide if we, as a nation, are going to war with a country twice the size of Iraq. And most of our government (and, frankly, the nation) is acting as if the decision is, right now, his and his alone. And as a matter of current political reality, it seems like it is.

This situation is far from what the Founders intended.

It’s right there in Article I, Section 8 of the Constitution:

[The Congress shall have Power ...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water …

Now, practically speaking, the United States Congress has not officially declared war with anyone since 1942 — though it has used the lesser tool of statutory force authorizations, which served as the legal basis for U.S. military action in both Iraq wars and the war in Afghanistan.

There’s a long and complex legal debate over the scope of presidential and congressional war powers that is far too extensive to get into here. But the exact scope is also not really the point.

What matters is that war powers were supposed to be a shared responsibility between the president and Congress.

As Ian Bassin and Aisha Woodward wrote last year in Lawfare:

Our Constitution divides the power of making war between Congress and the executive as an important check on that weighty responsibility. The executive has the ability to move expeditiously, and can centralize the kind of decision making in execution that a commander in chief needs to be effective. Congress, on the other hand, is more representative of public sentiment and its role ensures a democratic check so that anytime the nation bears the costs of making war, it has the necessary public support behind it to prevail. To implement that division, Article I gives Congress the exclusive power to declare war and fund military activities, and Article II gives the president the power to manage foreign policy and command our forces.

In other words, the tension, that balance between deliberation and deliberateness, between accountability and action, that’s how our system is supposed to work. War powers are designed to be a back and forth between the president and Congress.

This balance was, on the Founders’ part, quite intentional. (If you’re interested, the Constitutional Convention’s debates over exactly how to assign war powers are both fascinating and well-documented.)

And yet, in recent decades, we’ve slowly but decisively lost this balance. Despite the efforts of some in Congress, the decision of when to use military force — and potentially take the nation to war — is viewed as almost exclusively a presidential function. Now Congress offers very few (if any) practical checks on the president when it comes to moments like these.

For more on the long erosion of congressional oversight, see here.

War powers are ripe for abuse — but also just poor decision-making

The lack of congressional involvement in decisions over whether to go to war is dangerous for two reasons.

First, there’s the narrow risk of bad decision-making. Weighty decisions should be deliberated carefully, with open and public debate over costs and benefits. This is precisely the sort of reasoned and careful deliberation that a legislature is supposed to undertake.

Without public debate, there’s a high likelihood that the White House will stumble into situations rife with unintended consequences. Vietnam is the classic example, where multiple presidents made a series of dangerously unaccountable and ill-examined decisions. Ian Bassin and Aisha Woodward again:

The results were disastrous. More than 58,000 Americans were killed in Vietnam and the nation was nearly torn to pieces over it, with massive protests on the homefront, often directed at the very soldiers who were drafted against their wills to fight a war that did not have sufficient public support. And just as the Founders feared, a war without public support was a war the US was destined to, and indeed did, lose.

There’s no guarantee, of course, that greater deliberation and congressional oversight would have prevented disasters in Vietnam — or Iraq or Afghanistan for that matter — but it likely would not have hurt.

Then, second, an even more insidious risk than poor decisions: An autocratic president could use his or her power to start a war not because it’s in the country’s best national security interest, but as a ploy to consolidate power at home. To be clear, I don’t really think we’ve yet reached this point in the United States — potentially even if Trump joins the war with Iran.

Still, there are various examples throughout history, from Putin’s invasion of Ukraine to the Argentine junta’s decision to invade the Falkland Islands in 1982, where unilateral military actions by authoritarian leaders were closely tied to efforts to shore up and consolidate power at home.

Put simply, the ability to single-handedly (and with no oversight) start a war is a massive amount of power. That power could easily be abused in ways that are foreseeable and unforeseeable alike.

Congress can take back its oversight and decision-making powers

The good news is, none of this is immutable. Congress can and should re-establish its prominent role in high-stakes decisions over whether to start wars.

In the short term, this restoration could be tactical. And bipartisan. For example, Senator Tim Kaine, Representative Tom Massie, and other members of Congress are proposing a simple measure that would proactively constrain the White House in this specific case. Per The New York Times (gift link).

A resolution Mr. Kaine introduced Monday would require explicit congressional authorization or a formal declaration of war before U.S. forces could take direct action against Iran. It faces long odds on Capitol Hill given Republicans’ reluctance to challenge Mr. Trump’s power, but it could prompt a vibrant debate as lawmakers in both parties warn against involving the United States in the escalating conflict.

The measure is a direct invocation of the War Powers Resolution, a 1973 federal law intended to be a check on the president’s power to enter an armed conflict without the consent of Congress. While it would still allow Mr. Trump to authorize military action in self-defense in the event of an imminent attack, it would compel him to seek approval before carrying out any offensive operations against Iran.

(Read more about this resolution here).

Then, in the long term, there are more systematic proposed reforms that seek to place healthy constraints on war powers regardless of who the president is.

Last year, a cross-ideological group of members came together to introduce the National Security Powers Act, backed by Senators Chris Murphy (D-CT), Mike Lee (R-UT), and Bernie Sanders (I-VT), which would close some of the interpretive loopholes that presidents have exploited and automatically terminate funding for military action after 20 days if Congress has not authorized it. Similarly, the bipartisan National Security Reform and Accountability Act, was introduced in the House by Representatives Jim McGovern (D-MA) and Nancy Mace (R-SC).

None of these are new ideas. Neither are they partisan. Here’s Ian Bassin writing about the need for more congressional oversight of the Obama administration’s possible strikes in Syria in 2013: How Obama can get out of the Syrian bind he's in.¹

But today, the risks of poorly considered and unilateral decisions by the White House could be devastating, leading to thousands — if not millions — of deaths.

The Founders gave us tools to prevent that sort of outcome. We should use them.

1. Supporters of this president should take heed of Ian’s closing point: “[N]ext time, who knows who'll be making unilateral decisions to fire missiles. It might not be someone we like.”