Congress, the President, and the Dwindling Oversight of War

As is the case with the more controversial presidential decisions to use force, it is not uncommon to hear references to either the War Powers Resolution or Authorizations to Use Military Force without subsequent Congressional action. President Donald Trump’s April missile strike against Shayrat Airfield in Syria and use of the so-called “mother of all bombs” (MOAB) in Afghanistan are proving to be no different.

Indeed, these military actions raise two important questions in the broader discussion of war powers. First, are we seeing Congress’ role shrink as part of a larger, systemic decline in the oversight of warfare — perhaps a by-product of extant AUMFs? Secondly, do the recent escalations in the use of force indicate a sea change in how we conduct wars, and if so, is Congress a participant or observer?

We might consider first how we arrived at the status quo.

As the American position in the world has changed, so has the relationship between the executive and legislative branches regarding how the nation enters a conflict. Interpretations of the shared war powers between both the executive and legislative branches have evolved from their original conception in the Constitution, often creating a perception of a power imbalance between them. While many have offered that Congress frequently abdicates its responsibility, others have provided empirical evidence that this perception is overblown.

The reality is that conditions have changed. From the late-1940s up to the mid-1960s, the Congressional committee structure generally supported presidential decisions in foreign policy. This support was largely representative of common interests against the Communist threat and of averting nuclear war. It was also so extensive that some argued that there were two presidencies for domestic and foreign affairs.

The Civil Rights era, the Vietnam War, and Watergate reshaped the electoral landscape, and with it, this dynamic. Over the past few decades, parties have become more homogeneous, arguably a byproduct of the Congressional reforms of the 1970s, themselves a reflection of a new electoral environment.

As Congress changed, so has its systematic involvement in foreign affairs. And the polarization has affected decisions to use military force, certainly sizeable military operations. More recent scholarship maintains that presidents are strongest when an issue has little consequence for members. Inherently, this maximizes discretion to use military force, as opposed to other foreign policy tools that evoke partisan responses, such as foreign assistance.

We might not be surprised that Congress is mostly content with this arrangement, which maximizes its flexibility. Unfortunately, this runs the risk of subjugating much-needed oversight early in the decision-making process.

It seems a president is assured support for military operations, provided they are successful. The shared responsibility in the war powers has become a situationally dependent give-and-take. Regardless of party, presidents weigh the political costs and benefits in going before Congress, and it is becoming of increasingly less benefit (at least initially).

In his address to the nation, President Trump explicitly stated that the Syrian airfield strike was a “vital national security interest.” While this is debatable, the president stands on relatively firm ground to conduct a strike regardless of Congressional response. Over the years, Congress has given tacit approval to this practice — for example, its tepid responses to President Ronald Reagan’s strikes against Libya in 1986, President Bill Clinton’s response to an assassination attempt on President George H.W. Bush in 1993, and his strikes against terrorist training camps in Afghanistan and Sudan in 1998.

However, unlike previous operations in Syria that targeted ISIS, the April 6 air strike took aim at President Bashar al-Assad’s regime forces — and thus inconsistent with previous arguments that existing authorizations allowed the use of military force. Similar acts, at least in theory, should involve Congress.

Rest assured, the convenience of Congressional positions on war powers is not exclusive to either political party. President Barack Obama continued military operations against ISIS, even as his request for an AUMF went unheeded. He claimed to have the requisite authority, just as President George H.W. Bush stated before the Gulf War, although Bush ultimately received an AUMF more than five months into a troop build-up. It should surprise no one that President Obama’s request went nowhere largely on political grounds — again, no new phenomenon in the broader Congressional involvement in foreign affairs.

When it comes to the MOAB strike, President Trump is again on firm ground. The 2001 AUMF, which was granted in the immediate aftermath of 9/11 attacks, gave President George W. Bush wide latitude to conduct continued operations in Afghanistan and throughout the world. However, that AUMF has few limitations and President Trump is the third successive president to benefit from its non-sunsetting authority.

Regarding the airstrike, however, President Trump said that he gave the military “total authorization.” He is not the first president to devolve such authority to uniformed commanders, but his action further entrenches a new way of thinking about civilian control of the military. Even if effective in the short term, Congress might be concerned about the ramifications of a transfer of authority.

For example, what if the international community had argued that the MOAB was tantamount to a weapon of mass destruction? No matter whether it was “the right munition” against an ISIS cave complex, we run the risk of stretching existing norms. Again, Congress has a role to play here; just because a strike was legal does not mean that it is prudent. Congress might be concerned that attempts to mimic us might drive up the overall destructiveness of war. They might also be concerned that tactics could end up driving strategy. As Richard Fontaine and Vance Serchuk have noted, it is wise to regard AUMFs “as the beginning, not the end, of a process.”

The unfortunate reality of the evolution of our political system, however, suggests little-to-nothing will occur outside of a few news cycles. Presidents, regardless of party, will continue to maximize discretion, while Congress, regardless of partisan composition, will run the risk of organizational passivity. While not a repudiation of either recent strike, a healthy democracy has a Congress with an assertive role in the debate. Otherwise, it should not be surprised by instances when a president either opts to go it alone or pushes the envelope.