Yesterday, the Senate voted to table Rand Paul’s “motion to commit” the small business bill to the Foreign Relations Committee, with the instructions to add language expressing the sense of the Senate that “the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” This quote comes directly from a survey on executive power answered by then-candidate Obama in 2007. Democrats took Paul’s resolution as a way to embarrass the President, and voted accordingly: all 53 Democrats voted to table the motion. In addition, only 10 Republicans – Collins, DeMint, Ensign, Ron Johnson, Lee, Moran, Paul, Sessions, Snowe and Toomey – voted to agree on this fairly modest resolution.
I wish Paul just offered a real War Powers resolution so we could have that debate. However, it’s hard to argue with much of his speech from last night:
I think the most important thing we do as representatives is voting on whether or not to go to war.
If Congress doesn’t vote to go to war or doesn’t vote on the notion of going to war, we would have an unlimited presidency, and this is a very dangerous notion.
I would take this position no matter what the party affiliation were of the President, because I believe very strongly in the Constitutional checks and balances [...]
When we were attacked in World War II on December 7, Pearl Harbor, within 24 hours this body came together and voted to declare war on Japan. There is no excuse for the senate not to vote on going to war before we go to war.
The President had time to go to the United Nations, have a discussion and a vote. The President had time to go to the Arab league, have a discussion and a vote. The President had the time to go to NATO, but the President had no time to come to the people’s house, to the Congress, and ask, as the Constitution dictates, for the approval of the American people and for the approval of Congress.
Aside from the fact that his resolution doesn’t actually offer a vote to go to war, merely hijacking a small business bill with some modest language as a preliminary step, I respect Paul to an extent for actually trying to reignite Congressional war powers. This is an area where Congress abdicated its responsibility a long time ago, and it’s unhealthy for the Republic:
For many decades, presidents have used the large military at their disposal to initiate conflict, often without congressional authorization. The explicit power to declare war has not been invoked by Congress since World War II [...]
Surprisingly, it’s not that the president has systematically ignored or overridden Congress. In fact, the presidency has become the dominant war-making power precisely because this is how a majority of legislators want it. The president initiated major wars in Korea, Vietnam, and Iraq (twice), and in all of these cases — sometimes before the fact, sometimes after — Congress has passed the buck, delegating to the president the power to authorize force rather than declaring war itself. Senators and congressmen and women are similarly happy to pass on the blame when things go bad. Hillary Clinton’s assertion that her vote for the 2002 authorization for President George W. Bush to use force in Iraq was not an authorization for the preemptive war Bush actually fought is an instructive illustration of how Congress tries to have it both ways.
As Scott Lemieux notes, Congress has to actually exert its own power to have any. And they haven’t, not even with the aid of the War Powers Act, which doesn’t have any enforcement mechanism. And you can see what happened when Paul even so much as tried to constrain a President in war decisions, albeit with a bank shot – he got 10 out of 100 votes.
You can argue whether or not Congress should have warmaking powers over the executive, but you cannot argue about the Constitutional origin, nor can you argue about how Congress has basically left the playing field on war powers for decades now. This is how you have the United States end up in wars that have no end in sight, and then double down and escalate forces in response. Congress could respond by staking out powers for itself, but they have proven to be woefully craven in that respect.