There are nearly as many perspectives in Congress on the legitimacy of President Trump’s attack on Iran as there are members of Congress. “The Constitution is clear, our Constitution provides Congress initiatory powers of war,” insisted Congressman Massie after his resolution to end the Congressionally unauthorized strikes narrowly failed. And yet, despite Massie’s contention, there has been far more confusion than clarity regarding the powers of Congress when it comes to war-making authorized by the executive branch. According to Senator McConnell, America and Iran have been at war since 1979, because the Islamic Republic was “founded on the premise of existential war against America.” Senator Hawley disagreed. Deploying “ground troops,” he maintained, “constitutes war in the constitutional sense.” For Congressman Fine, it is war if “Congress declares war, and we haven’t declared war.” While bombs fall, casualties mount, and lawmakers debate definitions, Congressman Moskowitz concluded: “Congress is on the verge of irrelevancy.”
Yet the declining relevance of Congress to questions of war and peace did not begin with Trump. For decades, congressional authority over military action has been eroded by judicial decisions like INS v. Chadha, Justice Department opinions widening presidential discretion, and congressional failure to confront War Powers Resolution violations in Libya and Yemen. This erosion conflicts with some of the Founders’ expectations. James Madison imagined in Federalist 47 that the branches of government would exercise “control over the acts of each other.” He anticipated in Federalist 48 that Congress would prove “impetuous” and “enterprising” in wielding power. Alexander Hamilton quieted fears of kingly presidential prerogatives over the armed forces in Federalist 69. The president is only “first General and Admiral of the confederacy.” He stressed “Declaring of war” and “raising and regulating of fleets and armies…appertain to the Legislature.”
Even so, despite the Constitution having been designed to preclude executive dominance over the legislative, an examination of Revolutionary era politics reveals the longstanding challenges of legislative restraint on executive war powers—even setting aside arguments that the Founders gave the executive broad authority over matters of national security. Across the Atlantic, the same debates over legislative and executive power over declaring war were vividly expressed in Edmund Burke’s struggles to impose parliamentary oversight over the government of Lord North (Prime Minister of Great Britain from 1770 to 1782 under George III) and his many wars of choice concurrent with the American Revolution. The experiences of the Anglo-American political tradition evince the difficulties lawmakers have long faced in restraining executive war powers.
Both Hamilton and Burke esteemed Britain’s “Glorious” Revolution of 1688, which Hamilton described as curbing the king’s “undefined power of making war” by requiring parliamentary consent for “raising and keeping of standing armies” in Federalist 26 even as the authority to declare war remained a royal prerogative. Burke worried that the Crown, acting through its appointed ministers such as Lord North, could manipulate Parliament into endorsing wars it might otherwise resist. “For the first time since the Revolution,” he noted in 1771, “the power and influence of the Crown is held out, as the main and chief and only support of Government.”
A decade later he declared Crown influence “dangerous and alarming in its extent.” His chief evidence was the Crown’s success, through Lord North’s government, in exercising heavy-handed influence over Parliament to wage war against the Americans, France, Spain, and even Britain’s longstanding ally, the Dutch Republic. Madison’s historical analysis confirmed that Burke’s apprehensions were not anomalous to Britain. In Federalist 18, 19, and 20, Madison showed that the ancient Delphic Amphictyony, medieval German Diet, and contemporary Dutch Republic invested their assemblies with war powers but surrendered them to aggressive executives or overmighty members. Although desirable, legislative war powers were cumbersome to exercise.
Then, as now, executive control over information hindered legislative oversight. “How easy would it be to fabricate the pretenses of approaching danger,” Hamilton queried in Federalist 25. “Indian hostilities instigated by Spain or Britain, would always be at hand,” to justify military force. “We have been seduced, by various false representations, and Groundless promises, into a War,” Burke complained regarding the outbreak of war in America. The government’s “premediated concealment,” Burke charged, taught Parliament “to believe themselves preparing to suppress a Riot” before becoming “involved in a mighty war.” When war with Spain began in 1779, Burke faulted the government for having reassured Parliament such a conflict was unthinkable. “We slept night after night,” he rued, “and dreamt of the faith of Spain!” Relying on executive assessments of risks, lawmakers struggle to draw conclusions uninfluenced by executive preferences.
The executive can also discourage legislative constraints by presenting them as security risks. Burke “reprobated” the government’s declaration of war on the Netherlands in 1780 while Parliament was adjourned. The government had reduced the legislature “to the miserable alternative either of supporting the war, or of becoming liable to the charge of abandoning the cause of their country.” Facing this fait accompli, most lawmakers would rather sacrifice their judgment than jeopardize national security. In Federalist 70, Hamilton acknowledged the incompatibility of legislative and executive conduct. “Promptitude of decision is oftener an evil than a benefit” for the former while the latter required “decision, activity, secrecy, and dispatch,” especially “in the conduct of war, in which the energy of the executive is the bulwark of national security.”
The Glorious Revolution and the U.S. Constitution affirmed legislative war powers, even as the American Revolution exposed lawmakers’ difficulties exercising them. Nonetheless, the Revolutionary era underscores the risks of waging war without legislative support. Burke attributed many British setbacks to insufficient parliamentary debate on military policy. Chiding the ministry for enlarging the Boston garrison in 1774, Burke asserted “we saw Force sent out, enough to menace Liberty, but not to awe opposition.” Acting hastily, the British ministry, under the direction of the Crown, deployed forces “not sufficient to hold one town” while “inflaming Thirteen Provinces.” Following the breach with Spain, Burke admonished the government for “making war,” without having discussed “what means we had left for that purpose.” In both cases, Parliamentary debate would have clarified the “proportion of force to the necessity of the service.”
Insufficient legislative debate also allows private ends to abuse public means in war. Hamilton determined in Federalist 6 that “attachments, enmities, interests, hopes and fears of leading individuals” often cause wars. Burke linked the government’s undiscussed decision to wage war on the Netherlands in 1780 to financial improprieties committed by British commanders in conquered Dutch colonies.
Moreover, when wars go badly, the legislature is often better positioned than the executive to protect the nation’s reputation and promote policy changes. Madison explained in Federalist 63 that he expected the Senate to heed “the judgement of other nations.” Foreign judgment matters because policies should “appear to other nations” as being “wise and honorable.” Furthermore, if “national councils may be warped by some strong passion,” accessing the “opinion of the impartial world,” can avert reckless decisions. As a pluralistic and discursive body, the legislature is more sensitive to foreign judgment than the executive.
Legislative debate does not prevent unwise wars, but an executive that wages war without legislative support incurs considerable unnecessary risks. Regardless of whether President Trump’s strikes on Iran are considered legally sound, it was not in the administration’s interest to have superseded Congressional discussion over the means, ways, and ends of war. Absent legislative debate, the administration risks misjudging the “proportion of force to the necessity of the service,” allowing private ambition to override public interest, and becoming “warped by some strong passion.” Should the war go badly because of this risk, Congress should be prepared to uphold its responsibility to promote changes in policy.
