On March 24, the war in Iraq entered its sixth year. The anniversary prompted many Americans to reflect on our involvement in that particular conflict, but it should also remind us that we must constantly reexamine not only when or where we go to war, but how we go to war. The past half century has seen Congress willingly yield its constitutional duty to declare war to the Executive. In conflict after conflict, Congress has shirked its obligation to make the crucial decisions about initiating, and limiting, the use of American military force. 

Congresses controlled by both parties have granted presidents of both parties unchecked power to deploy American troops abroad. 

This was not the role that the founders intended Congress to play in military conflicts. Under our Constitution, Congress is charged with determining when and where to initiate force, while the President - as Commander in Chief - leads the tactical side of military operations. However, we now find that, through congressional acquiescence, the Executive branch has assumed both of these roles, leaving most substantive war-making powers in the hand of only one branch of government – indeed, in the hands of one person. Just the opposite of the constitutional design, which recognized that these crucial decisions should not be made by just one person, and contemplated that the peoples’ representatives – Congress – should make them.

For more than 50 years, presidents have failed to ask Congress to declare war, and rather than insisting on its constitutional obligation, Congress has instead shirked it.  In 1973, Congress attempted to reassert some of its authority by passing the War Powers Act, which permitted the president to authorize the use of force for only sixty days without prior congressional authorization. Unfortunately, the War Powers Act failed to sufficiently reassert Congress’ duty to determine whether a conflict should be initiated. Once the president has used this sixty-day “free pass” to make initial deployment decisions, Congress faces a choice of demanding the troops’ withdrawal – a risky political route -- or of taking the far easier course of simply acquiescing.  

In June 2005, the The Constitution Project’s War Powers Committee, co-chaired by former representatives Mickey Edwards (R-OK) and David Skaggs (D-CO), issued a report and recommendations to restore war powers to their proper constitutional alignment. According to Deciding to Use Force Abroad: War Powers in a System of Checks and Balances, Congress must authorize armed conflicts abroad beforehand in all situations except the most urgent and defensive.  The President must seek the authorization of Congress and supply it with all the necessary information needed to make a deliberate and transparent decision.  Congress must also have the ability to revise or rescind its authorization, and through the “power of the purse” must exercise the power to fund (or not fund) armed conflict, therefore checking the President’s power to unilaterally wage war.  Finally, in order to ensure compliance, the courts must have the power to decide whether the use of force has been properly authorized.

On March 13, the House Subcommittee on International Organizations, Human Rights, and Oversight heard testimony on this important issue. The lead witnesses were Representatives Edwards and Skaggs, who testified as co-chairs of the Constitution Project’s War Powers Committee. In his testimony, former Representative Edwards said that “Congress must clearly reassert the constitutional principle that only the people’s representatives have the authority to send American men and women to war, and courts should stand ready to assess whether these decisions have been lawfully made. Failure to do so may well result in a future president exercising what - by default - has come to be seen as the president’s unilateral authority.” 

Congress must assume the constitutional power that our founders contemplated and we must demand that it do so. Fortunately, in September 2007, Representatives Walter Jones (R-NC) and William Delahunt (D-MA) introduced the Constitutional War Powers Resolution, an important first step toward this end.

Ongoing conflicts in the Middle East, Africa, and elsewhere make this one of the most important issues facing our country. Congress, and our new President, should seize this opportunity to uphold the Constitution, and return to the people and their representatives the vital decision of when and where to go to war.