Unconstitutional War: Strategic Risk in the Age of Congressional Abdication

Article excerpt

There is an imbalance of constitutional power across the branches of the US government. Congress has failed to preserve its constitutional privileges, specifically its sole authority to declare war. (1) Over the past 60 years, through a combination of executive initiative and congressional abdication, the United States has engaged in large scale offensive wars absent congressional war declarations, despite Congress's constitutional authority and requirement to formally declare the nation's wars. (2)

For the 162 notable military deployments after World War II, Congress never declared war, opting instead to pass resolutions that effectively circumvented the constitutional war declaration process. Arguably, in its major military actions since 1950, the nation has failed to articulate political objectives commensurate with its sacrifice of blood and resources. (3) This dubious record stands in stark contrast to the ends obtained from wars that Congress actually declared.

Congressional resolutions are an insufficient substitute for war declarations for a number of reasons. The resolution process undercuts the framers' well-conceived declaration process designed to assure popular support for the nation's wars. Thorough congressional deliberation is imperative for arguably the most important decision the Congress has the authority to make--committing the nation to war.

The executive branch's recent practice of engaging in war without exercising the process of declaring war has left the nation's military repeatedly engaged in open-ended conflict. The ensuing uncertainty exacerbates an already complicated strategy formulation process and often leads to truncated, incoherent, or episodic military strategies. As the keeper of the nation's treasury, Congress determines the sustainability of any military effort. Ultimately, all war strategy depends on the nation's ways and means, along with the national will to sustain the effort to meet desired ends.

Whether a result of executive ambition, congressional abdication, or a combination of the two, committing US military forces to "war" without the benefit of the constitutional declaration process has not served the long-term interests of the nation. In addition to its questionable constitutionality, the resolution process has led to insufficiently defined national objectives. It constantly exposes strategy to political machinations. Finally, it fails over time to provide sufficient resources to achieve the uncertain objectives of the military actions that began extraconstitutionally.

War Power and the Constitution

First, consider the constitutional issue of power imbalance. Central to the Constitution is the foundational principle of power distribution and provisions to check and balance exercises of that power. This clearly intended separation of powers across the three branches of government ensures that no single federal officeholder can wield an inordinate amount of power or influence. The founders carefully crafted constitutional war-making authority with the branch most representative of the people--Congress. (4)

The Federalist Papers No. 51, "The Structure of Government Must Furnish the Proper Checks and Balances Between the Different Departments," serves as the wellspring for this principle. Madison insisted on the necessity to prevent any particular interest or group to trump another interest or group. (5) This principle applies in practice to all decisions of considerable national importance. Specific to war powers authority, the Constitution empowers the legislative branch with the authority to declare war but endows the Executive with the authority to act as Commander-in-Chief. (6) This construct designates Congress, not the president, as the primary decisionmaking body to commit the nation to war--a decision that ultimately requires the consent and will of the people in order to succeed. By vesting the decision to declare war with Congress, the founders underscored their intention to engage the people--those who would ultimately sacrifice their blood and treasure in the effort. …