Unchecked and Unbalanced: the Presidency in 2020

President Trump’s assassination of General Suleimani, the second most important Iranian government official, has been called an act of war and a declaration of war. Under the U.S. Constitution, only Congress has the power to declare war. But Presidents have come to completely dominate foreign policy, despite the text of the Constitution, with the result that enormously important policy decisions are subject to the whims of one person — even if that person is rash, ill-informed, and easily angered. Fixing this defect is more obviously important than ever — but no easier.

Seal of the President of the United States
It’s not just Trump, it’s what the Presidency has become.

An Angry Trump, Afraid of Looking Weak, Makes an Impulsive Decision that Stuns His Military Advisers

Trump and his Secretary of State have claimed that the killing was necessary to prevent an “imminent” attack on Americans and to stop a war. Insider accounts of the decision-making process make this claim impossible to believe.

According to a New York Times report, a U.S. government official “described the intelligence as thin and said that General Suleimani’s attack was not imminent because . . . the ayatollah had not yet approved any plans by the general for an attack.” The December 27, 2019 rocket attack on an Iraqi military base that killed an American civilian contractor “set the killing [of Suleimani] in motion.” Seeking a response, Trump consulted with the Secretary of Defense and the Chairman of the Joint Chiefs of Staff: “The options included strikes on Iranian ships or missile facilities or against Iranian-backed militia groups in Iraq. The Pentagon also tacked on the choice of targeting General Suleimani, mainly to make other options seem reasonable.” Trump ordered attacks against weapons storage facilities and command posts used by militia groups. Although the Chairman said there was “no collateral damage” in fact “about two dozen militia fighters were killed.”

The Times report describes what happened next (emphasis added):

But the Iranians viewed the strikes as out of proportion to their attack on the Iraqi base and Iraqis, largely members of Iranian-backed militias, staged violent protests outside the American Embassy in Baghdad. Mr. Trump, who aides said had on his mind the specter of the 2012 attacks on the American compound in Benghazi, Libya, became increasingly angry as he watched television images of pro-Iranian demonstrators storming the embassy. Aides said he worried that no response would look weak after repeated threats by the United States.

When Mr. Trump chose the option of killing General Suleimani, top military officials, flabbergasted, were immediately alarmed about the prospect of Iranian retaliatory strikes on American troops in the region.

Trump acted out of anger and without the concurrence of his security advisers. Anonymous U.S. officials told Foreign Policy that “the usual approval process, the decision-making process, did not occur” and that “even among the small group of officials who were in the loop, there was dissent about whether killing Suleimani was a wise decision.”

Within days of the assassination, the U.S. deployed 3,500 more U.S. troops in the region, the U.S. coalition suspended its fight against ISIS, the Iraqi parliament voted to expel U.S. troops, and Iran announced it was no longer going to abide by limitations designed to restrict its production of uranium.

Already the U.S. Secretary of State is threatening military action against Iranian leaders within Iran’s borders if Iran retaliates for the Suleimani killing. And Trump has “notified” Congress by Twitter that in case of Iranian attacks he will order a potentially “disproportionate” strike against Iran.

What About Congress?

Trump did not consult or notify Congress in advance of the strike. He provided an official notification two days later, but the entire document was classified — so that it (conveniently) could not be part of public discussion. One Congressional aide described the notice as “brief and insufficient.” Speaker of the House Nancy Pelosi said, “This document prompts serious and urgent questions about the timing, manner and justification of the Administration’s decision to engage in hostilities against Iran. The highly unusual decision to classify this document in its entirety compounds our many concerns, and suggests that the Congress and the American people are being left in the dark about our national security.”

Seal of the Congress of the United States
It is necessary, but difficult, for Congress to re-assert its power.

In 2019, Congress came close to including in the defense spending bill a prohibition on funds for military action against Iran without the approval of Congress. Even if that language had been included in the final law, it is probable that it would not have stopped the assassination, since it had exceptions for protecting Americans from imminent threat that Trump would surely have employed.

Following the assassination, House Speaker Nancy Pelosi announced that the House will vote on a resolution under the War Powers Act intended limit the President’s military actions regarding Iran. Since the Democrats have a majority in the House, it is very likely that the resolution will pass. Democratic Senator Tim Kaine introduced a similar resolution in the Senate which proclaims that military action against Iran has not been authorized by Congress and gives the President 30 days to either remove forces or get authorization from Congress. The text expresses the hope that “The question of whether United States forces should be engaged in armed conflict against Iran should only be made following a full briefing to Congress and the American public of the issues at stake, a public debate in Congress, and a congressional vote as contemplated by the Constitution.”

Such resolutions are “privileged” in the Senate, meaning that Republican Majority Leader Mitch McConnell cannot prevent them from coming before the full Senate for a vote. It is conceivable that four Republican Senators could join the Democrats to provide a majority for limiting military action against Iran. Under the War Powers Resolution, a concurrent resolution adopted by Congress to restrict Presidential military action has the force of law, even without the President’s signature. But a 1983 Supreme Court ruling effectively eliminated this “legislative veto.” Therefore Kaine and Pelosi are proposing a joint resolution — which requires the signature of the president or a two-thirds override vote, neither of which is likely.

Already Suleimani’s replacement has vowed to take revenge. If the cycle of vengeance leads to the deaths of Americans, it will be extremely hard to find a congressional majority in favor of limiting military strikes. Trump will have blundered into a war that undermines longstanding U.S. policy in Iran, Iraq, and the entire Middle East, and further strains relations with allies.

One Person Decides?

Trump’s usurpation of war-making power is in many ways nothing new: none of the wars that the US has fought since the Second World War have been officially declared by Congress, although most of them (with the notable exception of Korea) were authorized by Congress. There is also a long track record of executive-branch deception in military affairs, including the CIA’s clandestine wars of the 1950s and 1960s (including the overthrow of the first democratically elected government of Iran), the Gulf of Tonkin Resolution justifying escalation in Vietnam based on a false story, and the campaign to justify war against Iraq based on non-existent weapons of mass destruction.

Other than the largely ineffective, post-Watergate War Powers Resolution, “practically all of the law in this area has been developed by executive branch lawyers justifying unilateral presidential uses of force. Unsurprisingly, executive branch lawyers view unilateral presidential power very broadly,” writes law professor Jack Goldsmith.

In regard to Trump’s rash decision to kill Suleimani, Brookings scholar Scott R. Anderson observes: “the prospect that the president has such free reign to use military force overseas — even in ways that are in tension with the executive branch’s prior positions — is likely to be disconcerting. Yet this is the direction in which the U.S. legal system has gravitated over the past century, thanks to a combination of executive aggrandizement, judicial reticence and congressional abdication.” In a similar vein, Jack Goldsmith concludes that “our country has — through presidential aggrandizement accompanied by congressional authorization, delegation, and acquiescence — given one person, the president, a sprawling military and enormous discretion to use it in ways that can easily lead to a massive war. That is our system: One person decides.”

Not What the Founders Planned

It may be “our” system but it certainly is not the system created by the 1787 Constitution, even as amended. We are accustomed to epic struggles over Presidential elections, since the President sets the policy agenda, directs agencies to issue regulations, makes laws by executive order, and has unilateral control over foreign policy. None of these functions were part of the plan. The job of the president was simply to “execute” the laws passed by Congress, the people’s representatives. The president wasn’t elected by the people but by a complex system that would reflect the preferences of state legislatures, electors, and the members of the U.S. House of Representatives, should no candidate receive a majority of elector votes — as many thought would typically be the case.

The Constitution explicitly gives Congress the power not only to declare war but also to raise and support armies; provide and maintain a navy; make rules for the government and regulation of the land and naval forces; provide for calling forth the militia, and provide for organizing, arming, and disciplining the militia. The Constitution also says that “The President shall be the 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.” The distinction between setting military policy and carrying it out was made by the Framers of the Constitution, as James M. Lindsey demonstrates:

Alexander Hamilton, who is typically credited as having the most robust conception among the Framers of presidential power, wrote that the president’s powers as commander in chief ‘would amount to nothing more than the supreme command and direction of the military and naval forces…while that of the British kings extends to the declaring of war and to raising and regulating of fleets and armies: all of which by the Constitution under consideration would appertain to the Legislature.”

The Supreme Court has refused to get involved in war power disputes, and the result, says Lindsey:

is to turn the constitutional structure the Framers created on its head. At least it does if you agree with Alexander Hamilton that “the Legislature have a right to make war” and that “it is…the duty of the Executive to preserve Peace till war is declared.” How so? The Framers put the burden of effort in going to war on presidents. Presidents could not act until they had persuaded Congress to agree. That meant assembling winning coalitions in both the House and Senate. As I noted in an earlier post, some nineteenth century presidents tried and failed to secure congressional approval for hostilities they hoped to initiate.

By contrast, if presidents are free to act unless Congress stops them — as the judge suggested in Dellums v. Bush — then the burden of effort shifts to the other end of Pennsylvania Avenue. Congress can stop the president only by passing a law that commands him to do so. But that law is subject to a presidential veto. As long as a president can get thirty-four senators to back him, and almost every president can, he carries the day even if the other 501 members of Congress are opposed.

Facing those daunting odds, most members of Congress don’t see the point in challenging the White House. Why waste valuable legislative energy tilting at windmills? Moreover, political incentives reinforce the urge that lawmakers have to head to the sidelines. After all, laying oneself open to charges of refusing to support U.S. troops in the field is hardly a recipe for electoral success.

Restoring Balance in Matters of War

The War Powers Resolution was an attempt to move back in the direction of Congressional authorization for military deployment. But the Supreme Court’s legislative veto ruling has frustrated that attempt, and thus the net effect of the WPR is to legitimize the initiation of hostilities by the President, who only has to notify Congress and then can continue hostilities without further authorization for 60 days.

Except when restrained by lawyers and advisers, Trump has frequently acted as if he is not subject to any law. Recently the New York Times reported that lawyers at the Office of Management and Budget were in the process of writing a rationale to justify Trump’s decree to withhold military support for Ukraine, in clear violation of the Impoundment Control Act, based on the president’s supposed inherent authority as commander in chief.

In the summer of 2019, a group of good governance organizations sent a joint letter to congressional leaders urging them to reform the War Powers Resolution. The letter points out the deficiencies in the WPR and notes that more recently Congress “has allowed the executive branch to exploit and contort those powers that it does expressly grant. Successive presidents have invoked the 2001 Authorization for the Use of Military Force (AUMF) as the basis for military operations in at least 19 countries, including seven that are ongoing. The law, which authorized force against the perpetrators of the September 11 terrorist attacks, has been used to justify strikes against groups that did not exist at the time. Fewer than 16 percent of current Members of Congress voted for the AUMF in 2001, or any other current authorization for the use of military force. In the one case where a majority in both houses of Congress directed an end to U.S. involvement, in the Yemen Civil War, the executive branch nevertheless continued military operations.”

The next opportunity to reclaim Congressional authority in matters of war and peace (and in other domains) will be in 2021, but only if Trump and his Republican enablers are completely defeated in the 2020 elections. Although excessive Presidential power is a longstanding of American government, the ascendance of an incompetent person to the office highlights the problem, which has at least generated some attention: the New York Times polled the presidential candidates about their views on executive power and found that “Democratic presidential candidates broadly agree that President Trump has shaken the presidency loose from its constitutional limits and say that the White House needs major new legal curbs, foreshadowing a potential era of reform akin to the post-Watergate period if any of them wins next year’s election.”

But even if the Democrats end up in complete control, reform will not be easy. Foreign policy analyst Morton Halperin, who has six decades of experience with Presidential policy, keenly observes:

Because Congress can act only by presenting legislation to the president and securing his signature or overriding a veto, little of the needed reform can take place without buy-in from the president. In normal circumstances that is simply not likely. Every president will feel obliged, urged on by his advisers and the permanent bureaucracy, to oppose any effort to limit current presidential powers. Indeed, the post-Watergate reforms failed in significant part because of the need to secure presidential agreement or to get enough votes to override a veto.

Let’s try to make it different this time.

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