Congress Can’t Stop the President from Using Force He Deems Necessary

Congress Can't Stop the President from Using Force He Deems Necessary

Last week, President Trump ordered the elimination of Iranian Quds Force General Qassem Soleimani. Fearing that this event could cause an outright war in the Middle East, Democrats in Congress have said the president didn’t seek their approval and, therefore, what he did was not legal. In addition, they have introduced bills to strip the president of his powers as Commander in Chief and force him to de-escalate the conflict.

Does Congress have the Constitutional authority to stop a president’s military actions they don’t like?

Can Congress really use its Constitutional authority under the guise of “declaring war” to stop the president from acting militarily without their authorization when the president deems it necessary?

Historical context can help to shed light on these issues.

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Thomas Jefferson and the Barbary Wars

In 1801, President Thomas Jefferson was dealing with nation-states off the shores of Africa known as the Barbary pirates. They attacked ships from all nations, seized their cargo and ships, and sold captured sailors into slavery.

From the time of the Revolutionary War, Congress authorized the payment of bribes to allow American ships to pass without incident. When Jefferson took office, demands for higher payments were made. They even captured the U.S.S. George Washington, a US Navy frigate.

Jefferson detested the bribery payments and wanted to put an end to the Barbary pirates’ actions. So, he wondered what the scope of his military authority entailed. Jefferson’s cabinet concluded that a president has the constitutional authority to initiate military action if a state of war was already in existence due to hostile acts of the Barbary powers.

It was concluded that the Constitution only required Congress to declare war against a nation with whom there was peace.

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In a published criticism by Alexander Hamilton, he agreed with Jefferson’s assessment: “When a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary.”

The Modern Presidency and Congressional Authority

Time and again, presidents in the modern era have exercised military power without Congressional authorization:

  • President Truman responded to Soviet aggression and used military force in Korea.
  • President Eisenhower used the CIA and military action to contain communism.
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  • President Kennedy invaded Cuba at the Bay of Pigs.
  • President Johnson took unilateral action in Vietnam.
  • President Ford sent commandos to free the cargo ship Mayaguez being held by the communist government in Cambodia.
  • President Reagan committed troops to Lebanon and Grenada.
  • President Reagan used military force in Libya to curb terrorist threats.
  • President Clinton authorized an air campaign in Kosovo.
  • President Clinton authorized Operation Desert Fox to minimize Saddam Hussein’s ability to make weapons of war.
  • President Obama conducted drone strikes that killed thousands throughout the Middle East and Northern Africa.

Most, if not all, of the unilateral actions taken by past presidents could have resulted in a major escalation. In some cases they did.

Did Trump Have the Authority to Use the Military to Kill Iraq’s Influential General?

Under the Constitution, Congress has the power to declare war and fund or defund military supplies, as well as determine the size and scope of its power. However, it takes passing legislation in both sections of Congress and a presidential signature, or the numbers necessary to override a veto.

Democrats do not have enough votes to pass legislation in both chambers or override a presidential veto.

Congress Can’t Stop the President from Acting

For decades, Iran has threatened the United States and declared war against us and our allies. If the president has actionable intelligence from a nation that has declared war on us and he chooses to take military action, he should not have to wait for authorization or approval from Congress.

The reality is that there is much Congress can do by controlling the purse strings or making war declarations in a time of peace. However, the president has always had the authority throughout American history to move military personnel and assets, and approve military strikes against those who have threatened and openly declared war against us.

As Alexander Hamilton said, and I ask: is it necessary to seek a declaration of war or authorization to use military force from Congress if a nation is at war with us and is presently threatening to harm, or has already harmed, American citizens?

I think the answer is clear and Democrats are stretching the issue into a political one instead of a legal one in the case of Trump’s elimination of Soleimani. Ultimately, they will not be able to curtail the president’s executive powers to use military force. They simply don’t have historical or legal precedent on their side, nor the votes in both chambers of Congress.

By Don Purdum, Freelance Contributor

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