Last week the US struck Iran’s nuclear facilities on the tail end of Israeli action that laid the Islamic Republic’s defenses bare. The US involvement, although brief, was dramatic. Satellite imagery revealed much destruction around the three nuclear sites that were struck. The facilities are in shambles and unlikely to be available anytime soon. As more analysis is conducted, that will be evident.
Americans, as I have noted in this space, are war weary. Yet public opinion shows that they were largely supportive of the US attack. People know that Iran is a malevolent state sponsor of terror. Allowing them to have a nuclear weapon would be a unique form of insanity. Their capability had to be destroyed to avoid a nuclear proliferation in one of the most volatile regions in the world.
I am an advocate of the judicious use of military power when needed to secure our vital national interest. Stemming nuclear war unquestionably fits that category. A world with maniacal dictators like the Ayatollah Khamenei seeking nuclear weapons profoundly threatens peace. America was judicious in removing this threat for the foreseeable future.
That said, we do have legitimate issues in the US about how and when to employ military force. The Constitution is clear. Article II Section 1 states, “The executive Power shall be vested in a President of the United States of America.” Later in Section 2 it notes, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States. Indeed, the Ninth Circuit Court of Appeals recently sustained Section 2 in a decision that rebuffed California’s contention that the President was not permitted to federalize the National Guard without the consent of the governor. Wrong. Even the courts recognize clear language in the Constitution when they pause to read it.
Yet there is still a roiling debate concerning when the President can use military power without a declaration of war from Congress. That language is also clear in Article I, Section 8, clause that reads “[The Congress shall have Power . . .] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water…” The Anti-Federalists—those who were skeptical of concentrating power in the national government—were concerned that giving a single branch of government the power to declare war and raise funds to support it, effectively conveyed “the sword and the purse in a single branch.” They reasoned that situation might result in the ability of the national government to easily engage in ill-conceived wars. On the other hand, the Federalists—who wanted a national government that could actually govern effectively—believed that by separating the Commander in Chief’s power over the military from Congressional power over the purse—that is, the ability to fund wars—was a check on unfettered power that could result in wars that congress has not declared.
Enter the War Powers Act (WPA) which has always been controversial and largely ineffectual. Passed in 1973 in the wake of the Vietnam war, the WPA requires the President to inform Congress within 48 hours with a written notice to the Speaker of the House of Representatives and the President Pro Tempore of the Senate of the action whenever the President employs military power in combat. However, for years, Presidents of both parties have rejected the WPA as a constitutional infringement over the inherent powers to conduct such attacks under their Article II authority. The WPA also bars the use of armed forces in such a conflict for more than 60 days without Congressional authorization for use of military force or a declaration of war by the US. Finally, there is a further 30-day withdrawal period.
So, what’s the record on the WPS use? First, only eleven times has Congress actually declared war, and not once since World War II. Since then, there have been 125 military campaigns spanning Korea, Vietnam, Afghanistan, and Iraq. And for those in Congress today screeching about the President’s use of military power in Iran, the hypocrisy is stunning. Democrats were supportive of President Bill Clinton’s cruise missile attacks under Operation Infinite Reach on two continents on 20 August 1998, when he ordered attacks in locations in Khartoum, Sudan, and Khost Province, Afghanistan against terror targets. And constitutional scholar Jonathan Turley notes that President Obama also “defied the War Powers resolution on Syria” when he “actually did ask for congressional authorization to take military action in that country in 2013, but Congress refused to approve it. He did it anyway.”
It is time to settle this issue rationally and amend the constitution, not rely on statutory language that muddles the clear intent of the Founders Fathers.
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