War Powers: The Broken Balance Between the Branches

Editor's Note: This post contains the text of a speech that former Secretary of Homeland Security Jeh Johnson delivered on Feb. 6 at the American Constitution Society (ACS) Symposium at the Georgetown University Law Center.

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I am happy to be part of this symposium. I am a big fan of ACS; I have attended many ACS conferences in the past. And the subject matter—“unilateralist presidencies and submissive legislatures”—is of great interest to me.

When I was invited here two months ago, by email received at 4pm on Dec. 16, I accepted at 4:11 that same day, and began an outline of these remarks almost immediately.

I was prepared to talk about unilateralist presidencies and submissive legislatures through multiple administrations—Republican and Democrat—to include the events of 9/11, the Iraq War, recess appointments, Libya, Syria, immigration reform by executive action and funding a border wall by executive action. Then, as is the case so often in the Trump era, there was an intervening event—the drone strike on General Soleimani on Jan. 3—to vividly illustrate the point. And the discussion of war powers—which generally occurs only among national security lawyers and professors, Lawfare, Charlie Savage, and a small number of members of Congress—was thrust back on to the front pages.

So today my remarks will focus on war powers—specifically the president’s ability to commit the U.S. armed forces into some level of hostilities without congressional authorization.

War powers: The intended executive/legislative balance is—in a word—broken. There is no other way to say it.

The current scope of the executive’s authority in this space is indeed the product of decades of “unilateralist presidencies and submissive legislatures.” Essentially, Congress has abandoned this space, and the executive, in the name of national security real or perceived, has filled it.

As the founding fathers envisioned it in the constitution, Congress declares war, and the president, as commander-in-chief of the military, conducts it.

Congress declared the War of 1812.¹ Congress declared the Mexican-American War in 1846.² Congress declared the Spanish-American War in 1898.³ Congress declared World War I in 1917⁴, and war against Japan, Germany and Italy in 1941.⁵

In recent years Congress had continued to exercise this responsibility, though in more amorphous terms: the 1964 “Gulf of Tonkin Resolution,”⁶ which was later invoked by the president as the legal justification for the entire Vietnam War, and the various “authorizations for the use of military force” in 1991,⁷ 2001⁸ and 2002.⁹

Then things changed. Though the world continues to be a dangerous place, 2002 was the last time Congress stepped up to explicitly authorize kinetic military force.¹⁰

What happened? Again, the answer can probably be reduced to one word: politics.

Following the 2002 Iraq War vote members of Congress—particularly those running for president—realized that a vote to authorize war can be hazardous and even fatal to one’s political health. The 2008 Democratic presidential primary turned in very large part on the fact that Hillary Clinton voted to authorize the Iraq War and Barack Obama was on record against it. Collectively, members of Congress no longer want to take a hard vote on whether to go to war if they can avoid it.

This is not for lack of asking by the executive branch.

In 2013 the Obama administration asked for congressional authorization to strike chemical weapons sites in Syria.¹¹ Congress did not act on this request.

In 2015 the Obama administration asked for congressional authorization to use military force against ISIS.¹² Congress did not act on this request.

The notion that Congress declares war and the president conducts it has never been black and white. As reflected in Madison’s notes of the original Constitutional Convention, the framers recognized that, in the absence of congressional authorization, the president should have the limited authority to use the armed forces to “repel sudden attacks.”¹³ This was conventional wisdom as recently as 2007.

In Dec. 2007 Charlie Savage—then of the Boston Globe, now of the New York Times—sent the 2008 presidential candidates a questionnaire asking them to describe their view of the president’s war powers. The Obama campaign took Charlie’s questionnaire seriously, and put considerable time and thought into answering it. Question 2 is still relevant today:

Q: In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress?

A: The President does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

In retrospect, this answer is wrong. It was far too narrow a construction of the President’s constitutional authority, as the Department of Justice Office of Legal Counsel currently describes it—though candidate Obama disclosed in that same questionnaire that he had the supposed legal experts Laurence Tribe, Cass Sunstein, Jeh Johnson and Greg Craig help him with his homework assignment.

Candidate Obama went on to say in response to question 2:

History has shown us time and again, however, that military action is most successful when it is authorized by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.

And, when he became President, Barack Obama did in fact tell his national security team that he strongly preferred military action that had been authorized by Congress. At the time, that meant the 2001 and 2002 AUMFs.

And, at least during the time I was General Counsel of the Department of Defense, the Obama Administration construed the 2001 AUMF to provide the domestic legal authority for military force against core al-Qaeda, the Taliban, al-Qaeda in the Arabian Peninsula, and the al-Qaeda elements of al-Shabab in Africa.

Both the Bush and Obama administrations construed the 2002 AUMF to provide the domestic legal authority for armed conflict against Saddam Hussein’s regime in Iraq, and for military force against armed militia groups that sought to drive U.S. forces out of Iraq after the regime fell.¹⁴

I personally do not believe the 2001 AUMF covers armed conflict against ISIS in Iraq and Syria, or, as some have argued, that the 2002 AUMF for Iraq can be stretched to have justified lethal force against the Iranian General Qasem Soleimani.

In the meantime, as Congress has not acted in this space for the last seventeen and a half years, the Department of Justice’s Office of Legal Counsel has had to fill void, to articulate the contours of the President’s domestic legal authority to commit the armed forces in specific situations without congressional authorization.

Clearly, OLC’s recent opinions have described that authority in broad terms—far broader than I anticipated when I helped candidate Obama answer Charlie Savage’s questionnaire in 2007.

In 2011 OLC opined that “[t]he President had the constitutional authority to direct the use of military force in Libya because he could reasonably determine that such use of force was in the national interest.”¹⁵ In that case, what was the national interest? There were two cited by OLC: “preserving regional stability”—isn’t there always someplace in the world where regional stability needs to be preserved? – and supporting the UN Security Council’s credibility and effectiveness. The only limitation spelled out in this OLC opinion was that the operations must be limited in duration and scope, so as not to rise to the level of a full-scale “war,” which only Congress can declare.¹⁶

This opinion broke new ground.¹⁷ It went far beyond any rationale of self-defense or imminent threat to justify the use of military force without an authorization from Congress.

Subsequent opinions of OLC have staked out the same broad authority to address other circumstances.

In 2014 OLC issued an opinion that the president had the constitutional authority to launch airstrikes against ISIS, because of the “important national interests” in doing so, and because the “anticipated nature, scope and duration of the military operations did not rise to the level of a ‘war’ within the meaning of the Declaration of War Clause.”¹⁸

In 2018 OLC issued an opinion that the president had the authority to direct airstrikes on Syria’s chemical weapons facility for the same reasons.¹⁹

Then came the Soleimani strike last month.

As I told Meet The Press, Face the Nation, CNN and others: if one believes everything the government is saying about General Soleimani, under existing OLC opinions I have just recounted here, he was plainly a lawful military objective, and the president had ample constitutional authority to take him out without congressional authorization, as a general in a military engaged in hostilities against U.S. armed forces.

But, in the face of conflicting justifications for the strike, uncertainty about whether the strike was the escalation to a full-scale war with Iran, and a President perceived to be compulsive and erratic in his decision-making, many in Congress want to finally reassert themselves, through invocation of the War Powers Resolution.

The War Powers Resolution is outdated, plain and simple. Invocation of it now also presents a constitutional conflict between the two political branches of government that has been brewing below the surface for years.

As most of you know, the War Powers Resolution was enacted by Congress in 1973, over Richard Nixon’s veto, as an effort to rein in the President during the Vietnam War. Put simply, it says that if a President initiates hostilities without congressional authorization, he must stop if Congress so directs by concurrent resolution, ²⁰ or within 60 days if Congress has not provided that authorization.²¹

Six days after the Soleimani strike, the House passed concurrent resolution 83, offered by Rep. Elissa Slotkin.²² This resolution invokes Section 5(c) of the War Powers Resolution and purports to require the President to “terminate the use of United States Armed Forces to engage in hostilities in or against Iran” unless authorized by Congress.²³

This resolution has virtually no chance of legally binding the president’s actions, as a concurrent resolution is not submitted to the president for signature or veto. Further, the Supreme Court’s 1983 decision in INS v Chadha²⁴ makes clear that Congress itself cannot veto executive action simply by concurrent resolution.

Likewise, Sen. Tim Kaine has offered a joint resolution in the Senate that invokes the War Powers Resolution, and that directs the president to remove U.S. armed forces from hostilities against Iran.²⁵ While a joint resolution passed by Congress is traditionally submitted to the president like a bill, even if this one passed both houses it would almost certainly be vetoed by the president and there will not be enough votes in Congress to override it.

More fundamentally, the wording of both resolutions purports to limit the president’s authority to use the armed forces without congressional authorization to just defending the U.S. against imminent attack.²⁶ Meanwhile, as I have detailed earlier, OLC says the president’s constitutional authority to use the armed forces without congressional authorization is far broader. This is the constitutional conflict.

Don’t look to the courts to resolve such a conflict. The courts will decline to get into the middle of such a constitutional dispute between the two political branches of government, either because of lack of standing by a plaintiff to bring such a lawsuit, or because the lawsuit presents the quintessential political question that courts decline to resolve.²⁷

The War Powers Resolution should be repealed and replaced. I support the proposed War Powers Consultation Act, offered by Sens. McCain, Kaine and King in 2014. This bill strikes all the right balances. It repeals the War Powers Resolution. It preserves the President’s constitutional war powers, puts the onus on Congress to act, and does not outright require the President to withdraw forces in the face of congressional inaction.²⁸

This bill has been sitting in Congress for six years. I wish more in Congress would have an abiding interest in this important subject, and not just for a few weeks after a drone strike.

After all, it’s nothing less than the Constitution and matters of life and death.

In closing I wish to make several discrete points:

First, this discussion has been all about domestic legal authority to engage in armed conflict. Nothing here reflects what international law permits or prohibits.

Second, I have done my best here to convey the current view of what the president’s war powers are, not what I believe they ought to be. Particularly in the realm of constitutional law, too many commentators tell us their personal preferences for what the law should be, masquerading as what the law is.

Third, and related, just because I tell you there is legal authority to do something doesn’t make it a good idea. During my days at the Pentagon, I signed off on a number of things by saying “legally available but strategically unwise.”

Finally, as we discuss presidential war powers here at the Georgetown Law Center in Washington, let’s never forget the bravery and dedication of those on the front lines who must act on the President’s war powers and Congress’ authorizations. In these remarks I make reference to the 2001 AUMF as if it were a sterile legal acronym, but as of today 2,445 members of the U.S. armed forces have given their lives in Afghanistan pursuant to it. Today thousands more are forward-positioned in places like Iraq, Afghanistan, Syria and the Persian Gulf, ready to risk their lives on a moment’s notice to carry out the orders of our Nation’s civilian leaders.

It’s time for our leaders to exercise some political courage, and resume the responsibility to stand up and vote yes or no on matters of war and peace. Don’t they owe that to our Nation’s military, whom we count on to exercise real courage in defense of all the rest of us.

Thank you.