The President Commands, Congress Declares, and Somehow Neither Has Formally Done the Other’s Job Since 1942 While Wars Continue to Happen
The President Commands, Congress Declares, and Somehow Neither Has Formally Done the Other’s Job Since 1942 While Wars Continue to Happen
The Constitutional Division of War Powers: A System That Works in Theory
The Constitution divides the war power with elegant clarity. Congress declares war. The President commands the military. This separation was deliberate: the founders feared giving any single actor both the power to commit the nation to conflict and the power to prosecute it. By requiring legislative authorization for war, they inserted a democratic check on the executive’s natural inclination to find military solutions to diplomatic problems. The system was designed to make war difficult to start and possible to end. It has worked approximately as designed, in the sense that formal declarations of war have been rare. It has not worked as designed, in the sense that military conflicts have not been rare, and the formal declaration requirement has been navigated around with a creativity that the founders, who did not anticipate the Korean War, the Vietnam War, the Iraq War, or the approximately 200 other military interventions in American history conducted without formal declarations, might have found alarming.
The last formal declaration of war was in 1942. Everything since – Korea, Vietnam, the Gulf War, Afghanistan, Iraq, Syria, Libya, Yemen, Somalia, and the rotating cast of counterterrorism operations in countries whose names are sometimes classified – has been conducted under some combination of Authorization for the Use of Military Force resolutions (which authorize military action without technically being declarations of war), the President’s claimed inherent authority as Commander-in-Chief, and the War Powers Resolution of 1973, which requires the President to notify Congress within 48 hours of committing troops to combat and to withdraw them within 60 days absent congressional authorization. Every president since 1973 has complied with the notification requirement and contested the constitutional validity of the 60-day limit, which is a creative interpretation of a law that was passed precisely to limit what presidents were claiming the authority to do. The War Powers Resolution remains on the books. It has never successfully ended a military operation. The operations continue.
Diplomacy: The Alternative to Shooting That Also Requires the Senate
The President has the power to negotiate treaties, subject to ratification by two-thirds of the Senate. This requirement – the highest supermajority in the American system – was designed to ensure that major international commitments reflected broad national consensus rather than presidential preference. It has produced a systematic workaround: the executive agreement, which is an international commitment made by the President without Senate ratification and which has been used for approximately 95% of all significant American international agreements since World War II. Executive agreements are binding on the executive branch. They are not ratified by the Senate. They can be reversed by a subsequent president without congressional action. They are, in practical terms, presidential foreign policy conducted without the constitutional check the founders prescribed.
The Iran nuclear deal (JCPOA) was an executive agreement. The Paris Climate Accords were an executive agreement. The Trans-Pacific Partnership negotiations produced an agreement that was submitted for congressional approval under Trade Promotion Authority rather than treaty ratification. Major international commitments – arms control, trade, climate, alliances – have migrated away from the treaty process and toward executive agreements and congressional-executive agreements, because the two-thirds Senate ratification threshold is essentially unachievable in a polarized Senate for any agreement that the minority party opposes, which in a polarized Senate means essentially any agreement the majority party supports. The founders built a check that cannot be cleared. The executive branch found the door next to it.
Military Power and the Global Footprint: 750 Bases, 170 Countries, Zero Formal Declarations
The United States maintains approximately 750 military bases in approximately 80 countries, spends more on defense than the next ten countries combined, and has stationed troops, conducted air operations, or provided military assistance in approximately 170 countries since 2001. This global military presence is the product of 80 years of foreign policy decisions made by presidents of both parties, reflecting the judgment that American security requires global engagement, that global engagement requires forward positioning, and that forward positioning requires bases, forces, and the capability to project power anywhere on Earth with relatively short notice.
The cost – approximately $886 billion per year in the Defense Department budget, plus substantial additional expenditures in the State Department, intelligence community, and veterans’ affairs – is the largest military expenditure in human history in absolute terms. Whether it produces commensurate security benefits is the question that defense analysts, foreign policy scholars, and budget hawks have been arguing about for decades without reaching consensus, partly because the counterfactual – what would have happened without this investment – is unobservable, and partly because the people with the strongest institutional interest in answering the question one way are the people whose budgets, careers, and institutional existence depend on the answer being favorable. The defense establishment is not uniquely susceptible to this dynamic. It is, however, uniquely expensive at approximately $2,400 per American per year, which is a figure that would seem remarkable if Americans were asked about it in those terms, which they generally are not.
Trade, Alliances, and the Architecture of American Power
American foreign policy rests on three pillars built after World War II and maintained, with varying commitment, ever since: international trade rules that opened global markets and benefited American exporters and consumers while producing domestic distributional effects that benefited some Americans substantially and harmed others significantly; military alliances – NATO, the US-Japan security alliance, US-South Korea alliance, and others – that committed American military power to the defense of allies in exchange for strategic positioning and political alignment; and international institutions – the United Nations, the World Bank, the IMF, the WTO – that provided forums for multilateral cooperation and rules for resolving disputes without resort to conflict.
This architecture was constructed by American policymakers who believed that American power was best exercised through institutions that embedded American influence in rules that others would voluntarily accept. It produced seven decades of relative great-power peace, unprecedented global economic growth, and the expansion of democratic governance across much of the world. It also produced distributional effects – manufacturing job losses, trade deficits, perceived American subsidization of allies’ defense – that generated political backlash in the domestic constituencies that bore those costs without receiving proportionate benefits. The architecture is under stress. Whether the stress produces adaptation or collapse is the central question of current American foreign policy, and it is being answered in real time by decisions whose consequences will be visible only in retrospect, which is how all consequential historical decisions work and which provides cold comfort to the people making them.
SOURCE: The London Prat