So now President Donald Trump is a war leader. His decision to launch 59 Tomahawk cruise missiles across an international border is an act of war. And, like most of America’s wars, it will never be declared by Congress.
Immediately upon the news of the Syria strike breaking Thursday night, Twitter erupted with complaints that the U.S. Constitution vests the power to declare war only in Congress. This common worry misapprehends both the structure of the Constitution and the historical understanding of the declaration of war.
Let’s start with the obvious: Every U.S. president, all the way back to the founding, has at some point used military force without first obtaining the approval of the legislative branch. Most prominently, in the Cuban missile crisis, President John Kennedy took the nation to the brink of nuclear war with the Soviet Union.
More recent history is much the same. In 2011, the White House justified President Barack Obama’s orders to attack Libya with the remarkable argument that because U.S. forces were conducting only bombing and using missiles, the actions did not constitute “hostilities” within the meaning of the War Powers Resolution of 1973 — a statute requiring that hostilities end within 90 days if no congressional approval is forthcoming.
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True, presidents often claim to find justification for their wars in the language of existing statutes and resolutions. Obama relied regularly on the Authorization for Use of Military Force adopted by the Congress after the Sept. 11 terrorist attacks. That resolution is now more than a decade and a half old, but I have no doubt that the Trump White House will soon be citing it as legal authority.
But what about the congressional power to declare war? Scholars nowadays are sharply divided over whether the Constitution’s framers intended it as a check on the executive’s “independent” warmaking authority. Certainly at the time of the founding, the use of a formal declaration of war had fallen into desuetude. Yes, there is a reasonable case to be made that the framers did indeed hope to restrict presidential use of the military without congressional assent. (That’s one reason for the early resistance to a standing army.) But the new nation did not behave as though a declaration was necessary.
The declaration of war clause in the Constitution represents an effort to limit the president’s ability to undertake an “offensive” war — what in 18th-century tradition would have been understood as a war for conquest or glory. Perhaps you find that reading too narrow. But the lessons of Supreme Court Justice Felix Frankfurter hold: In the end, the meaning of the Constitution is largely determined by how the political branches of the federal government act over time. And over time, the power to declare war has become a dead letter.
Still, Congress possesses considerable powers to prevent the president from making war should it choose to exercise them. In particular, the House and the Senate can vote to cut off funding, as they did in 1973, overriding a presidential veto of a law refusing to pay for the bombing of Cambodia. That’s tough to do, of course, but it would be a lot easier if Congress had not acquiesced over the years in the buildup of warmaking authority in the executive. There’s zero chance that the House or Senate would adopt a resolution restricting President Trump’s freedom to act in Syria.
The result is that the commander in chief can order the U.S. military into action whenever it suits his judgment. Many people, myself included, are uneasy with that hard truth. For better or worse, however, it has been our practice for a long time. Clinging to the long-dead notion that Congress must first declare war might be comforting, but it has nothing to do with reality.