Constitution Check: Does spending on war amount to declaration of war?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a lawsuit challenging the President’s ability to take military action against ISIS.

THE STATEMENT AT ISSUE:

“Once it is determined that the political branches have exercised their respective constitutional roles and responsibilities, and that Congress has ostensibly assented to the military action in question, there is no necessity of determining boundaries between the coordinate branches, and no place for further judicial inquiry….Some courts have found evidence of congressional assent in appropriations for military activities or other affirmative measures that tend to demonstrate Congress’s intention to implement and support the military effort in question….Other courts…have gone further, inferring consent from the absence of conflict between the political branches…such as not cutting off appropriations that are the wherewithal for the president’s decision.”

 – Excerpt from a lengthy legal brief filed by the Obama administration in a federal trial court in Washington, D.C., on July 11, urging the judge to dismiss an Army officer’s lawsuit challenging the legality of the U.S. military actions against the Islamic State (ISIS, or ISIL) in Iraq and Syria.  The Army officer is to file an answering brief on August 18 to try to keep his case moving forward.

WE CHECKED THE CONSTITUTION, AND…

Of all the powers that the original Constitution gave to Congress, the one that probably has shifted the most to the Executive Branch is the decision to begin armed hostilities – to send the United States into war or its equivalent.  Wars are seldom declared in the formal sense anymore, but wars do start, with great frequency, on the initiative of the President, and they last as long as the President decides to keep them going.

The reality these days is, in fact, that the most forlorn effort to restore the original war-declaring power to Congress is to sue the government in court seeking that goal.  The federal government’s lawyers can rely on a dozen or more failed lawsuits aimed at testing the legality of this or that military operation.  And the government is doing just that now, to try to end the latest legal complaint against a war effort: this time, the challenge is to the two-year-old campaign to defeat the terrorist Islamic State.

In the beginning of the Republic, of course, the Founders wanted the power to declare war to be lodged in the hands of the branch of the government that they had designed to be the most immediately politically accountable –  Congress, and especially the House of Representatives.  The Founders assigned to the Executive Branch the power to carry on a war once declared.  But they definitely thought that to “make” war was not the same as to “declare” it.

Then, as now, basic democratic theory has taught that the most momentous decision comes when the choice is made to commit the nation to warfare.  That requires the greater political responsibility; once that decision is made, waging war is a matter of choices between manageable alternatives of strategy and tactics – a function that can be trusted to the presidency.  And that executive function is judged by the people, after the fact.

In the modern era – and this is as true of the hostilities against the Islamic State as it was with the “war on terrorism” against the perpetrators of the September 11, 2001, attack on American soil – the constitutional roles are, in large part, reversed.  The Executive commits to conflict in the first place, then Congress reacts.   Almost always, Congress gives its consent, in one way or another, because the alternative is politically irresponsible: cutting off the money to the troops in the midst of battle.  That simply can’t, or won’t, be done, however constitutional it might be.

When President Obama and his aides decided in 2014 to send waves of air strikes against ISIS (or ISIL) in Iraq and Syria, the President made it clear that – while he would be happy with an endorsement from Congress – he believed he already had the authority, and he would proceed with or without authorization.  While there was some grumbling in Congress, it never voted explicitly to authorize the effort.

Although the White House has several times since then offered explanations of the sources of authority that it believes the President has to attack ISIS, a filing it made last week in a federal court in Washington was the fullest legal justification it has yet put on the record.

The legal defense is built simply upon a theory of logical progression, from the starting premise that Congress did formally approve.  It begins with the congressional authorization, enacted after the 2001 attacks on New York City and on the Pentagon, and then moves on to the congressional authorization, enacted in 2002, to allow armed conflict with the Saddam Hussein regime in Iraq.

Even though each of those measures, in the context of their time, was limited (and neither had the constitutional stature of a declaration of war), the White House now treats them as far more expansive and relies upon the fact that Congress had never repealed either one as proof that Congress does agree that they remain a source of war-making power against ISIS.

Beyond those, the White House depends on a series of appropriations bills, passed by Congress at the request of President Obama, to finance the entire anti-ISIS war effort, which goes by the military slogan, “Operation Inherent Resolve.”  Each of those measures is now treated as having solidified Congress’s embrace.

And, in a kind of ultimate argument, the lawyers for the government have contended that the fact that Congress has not acted to deny such funding or to cut it off for the future shows that the two political branches are actually in harmony, joined in a willing partnership in the execution of the war against ISIS.

Besides claiming legal support for the ISIS effort before it ever began, under the 2001 and 2002 authorizations of military action, those lawyers told the federal court last week, “Congress has now ratified the President’s military actions against ISIL, through joint participation and an unbroken stream of appropriations….This steady funding support is by itself sufficient to foreclose any conceivable role for the courts in a challenge to Operation Inherent Resolve.”

Only if that partnership actually breaks down, with Congress taking some explicit action to end its support, the government lawyers have asserted, will there be any role for the courts to play in deciding whether the Constitution’s division of war powers has been violated.

It thus will soon be up to District Judge Colleen Kollar-Kotelly to decide whether to dismiss the lawsuit challenging the ISIS effort’s legality.  There is much precedent to support doing just that.