This article was first published in The Hill. The Iraq War is turning 20. And while Saddam Hussein is long gone, thousands of U.S. troops remain in the Middle East, and the legal and constitutional questions raised by that war and the broader "war on terror" it launched continue to shape U.S. foreign policy. One of the most fundamental questions is: Can the President declare war?
The answer is not a simple yes or no. The Constitution grants Congress the power to "declare war," but U.S. Presidents have long initiated military action without a formal declaration. This has led to debates over the scope of the President's war powers and the role of Congress in authorizing military action.
The Constitution's framers intended for Congress to have the primary responsibility for deciding when to go to war. James Madison, a primary author of the Constitution, wrote that "the power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature." The Constitution's text reflects this intention, stating that "Congress shall have power...to declare war."
However, the Constitution also designates the President as the "Commander in Chief of the Army and Navy of the United States." This has been interpreted to mean that the President has the authority to use military force to defend the country, even without a formal declaration of war.
The War Powers Resolution of 1973 attempted to clarify the President's war powers by requiring that the President consult with Congress before initiating military action. The resolution also requires that the President obtain congressional authorization for any military action lasting more than 60 days. However, Presidents have often ignored or circumvented the resolution, leading to further debates over the scope of presidential war powers.
Recent efforts to reform the legal architecture of the post-9/11 "war on terror" have focused on repealing the authorizations that led to the wars in Iraq and Afghanistan. Democratic Sen. Tim Kaine of Virginia has been trying to repeal these authorizations for ten years, and his efforts are finally gaining traction. In June 2021, the Senate Foreign Relations Committee voted to repeal the 2002 authorization for the use of military force in Iraq. Advocates say the vote shows progress in efforts to reform the legal architecture of the "war on terror."
The repeal effort is also targeting a similar 1991 authorization that gave President George H.W. Bush permission to start the Gulf War. These authorizations have been used by multiple Presidents to justify military action in the Middle East, long after the original wars ended.
The recent conflict in Ukraine also raises questions about the President's war powers. When Russian President Vladimir Putin sent troops into Ukraine in 2022, he did so without a formal declaration of war. The U.S. and its allies responded with economic sanctions and diplomatic pressure, but did not use military force. Some critics argue that the U.S. should have taken more aggressive action, while others point to the risks and costs of military intervention.
In China, President Xi Jinping's recent reelection raises questions about the future of U.S.-China relations and the potential for military conflict. China has been expanding its military and asserting its territorial claims in the South China Sea, leading to tensions with the U.S. and its allies. While military conflict between the U.S. and China is unlikely, it is not impossible.
One of the most controversial proposals for military action is the idea of launching a war in Mexico. Some Republicans have suggested that the U.S. should use military force to combat drug cartels and other criminal organizations in Mexico. Critics argue that this would be a violation of Mexico's sovereignty and could lead to a humanitarian crisis.
In conclusion, the question of whether the President can declare war is a complex and contentious one. While the Constitution grants Congress the power to declare war, U.S. Presidents have long initiated military action without a formal declaration. Recent efforts to reform the legal architecture of the post-9/11 "war on terror" have focused on repealing the authorizations that led to the wars in Iraq and Afghanistan. The recent conflicts in Ukraine and China raise new questions about the potential for military action and the limits of presidential war powers. Ultimately, the decision to go to war should be made with great care and deliberation, with a full understanding of the risks and consequences involved.
