War Powers Are Dead

Democratic Sen. Tim Kaine promises he’ll refile a war powers resolution in the Senate demanding President Donald Trump ask for congressional approval before launching any military strikes against Venezuela.

A similar bill failed by a 49-51 vote in the Senate last month.

Why does the bill specify “Trump” and “Venezuela”? For the same reason that a similar bill in June specified “Trump” and “Iran.” Democrats aren’t serious about constitutional war powers. They’re grandstanding.

After all, there’s no need for any resolutions or bills. We already have Article I of the Constitution, which explicitly confers the power to declare war with Congress and no one else. There’s no exemption for either party in the text.

We also have the War Powers Resolution.

In 1973, Congress, which still occasionally defended its constitutional role, overrode a President Richard Nixon veto and passed a law limiting the president’s ability to use military force without congressional consent. The executive branch was now theoretically obliged to consult with Congress within 48 hours of an attack or as soon as there was imminent involvement. The ensuing military actions would be limited to 60 or 90 days, unless Congress authorized it.

Virtually every White House ignores it.

Presidents have been trying to circumvent Congress on the issue of war since President Thomas Jefferson sent the nascent American Navy to deal with Islamic pirates who were enslaving Americans and disrupting trade. Needless to say, war has only become more kinetic and complex since then, so presidents have been given lots of leeway to react to fluid situations.

All presidents, at least, felt the need to justify military action with a patina of constitutional reasoning.

Until 2011, that is, when then-President Barack Obama authorized military strikes on Libya’s air defenses to protect Islamic rebels from attack.

Obama did something new: He informed Congress that authority for military action was derived from a mandate of the United Nations Security Council.

While most presidents circumvented the Constitution, the notion that an international organization, not to mention one with permanent seats for Communist China and totalitarian Russia, had any authority to dictate American military deployment was a direct attack on self-determination.

Partisans on both sides only pretend to care about war powers when it’s convenient. Increasingly, this is a problem on all fronts of constitutional governance.

Now, Trump has a strong case to make for stemming the influx of illicit drugs coming from Latin America. The Justice Department reportedly told lawmakers that the president doesn’t need congressional permission to destroy drug boats in the Caribbean and Pacific because the strikes don’t meet the definition of “hostilities.” They argue that “narco-terrorists,” a misnomer that’s now popular on the Right, are using money from trafficking drugs to finance their war against the U.S. and its allies.

It is highly unlikely that narco-traffickers are interested in the geopolitical fortunes of the U.S. “Terrorism” has a precise definition, which entails the use of violence or threats of violence aimed at a civilian population or government to achieve political or ideological objectives. Drug smugglers are powerful criminals, occasionally supported by nation-states, who attack our sovereignty. But they aren’t typically engaged in terrorism, even if that word is helpful in your legal and political arguments.

If there is a good case to be made for doing so, Congress should see the evidence. Because once guided missiles start making a regular appearance, we are engaged in real-world “hostilities.”

And if a foreign nation is enabling or inciting the influx, it’s completely reasonable for the U.S. to retaliate.

Trump has also threatened to close Venezuelan airspace — an act of war, reportedly telling the nation’s strongman, Nicolas Maduro, to leave the country and allow for regime change. Now perhaps he’s just trying to scare Maduro into curbing the narco-traffickers, or perhaps he means to destroy the country’s production facilities and drug trafficking routes. Either would also be war.

Conflicts are messy and unpredictable, and they often cross administrations. If Trump wants open-ended permission to deal with Latin American drug cartels, he should go to Congress and let Democrats either vote it down or buy-in.

Not only would it be beneficial politically, but it would also reassert some semblance of constitutional order.

Don’t get me wrong, though, I’m not living in a fantastical world where I believe any president will relinquish power. At this point, demanding politicians abide by constitutional norms is a lost cause.

But war powers? They’re already dead. They’ve been dead for a long time.

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