The most important constitutional challenge regarding the balance of power between the president and Congress in modern times comes down to a simple question: When should the president have the unilateral authority to decide to use military force, and what is the place of the Congress in that process?
In the decades following the height of the Vietnam War, our constitutional process fell apart. Year by year, skirmish by skirmish, the role of the Congress in determining where the U.S. military would operate, and when the awesome power of our weapon systems would be unleashed has diminished. In the aftermath of the 9/11 attacks, especially with the advent of Special Operations forces and remote bombing capabilities, the Congress seems to have faded into operational irrelevance.
We have now reached the point that the unprecedented—and quite frankly contorted—constitutional logic used by this administration to intervene in Libya on the basis of what can most kindly be called a United Nations standard of “humanitarian intervention,” was not even subject to full debate or a vote on the Senate floor. Such an omission, and the precedent it has set, now requires us to accept one of two uncomfortable alternatives. Either Congress must reject this passivity and live up to the standards and the expectations regarding presidential power that were laid down so carefully by our Founding Fathers, or it must accept a redefinition of the very precepts upon which this government was founded.
The conflict in the balance of power between the president and the Congress has always been an intrinsic part of our constitutional makeup. Article One, Section 8, of the Constitution provides that the Congress alone has the power to declare war. Article Two, Section 2, of the Constitution provides that the president shall serve as commander in chief. In the early days of our republic, these distinctions were clear. We retained no large standing army during peace time. Article One, Section 8, also gives the Congress the power to “raise and support armies.” This phrase expressed the clear intent of the framers that large ground forces were not to be kept during peacetime but instead were to be raised at the direction of Congress during a time of war.
Only after World War II did this change. Our rather reluctant position as the world’s greatest guarantor of international stability required that we maintain a large standing military force, much of it in Europe and in Asia, ready to respond to crises whose immediacy could not otherwise allow us to go through the lengthy process of mobilization in order to raise an army. That reality made the time-honored process of asking the Congress for a declaration of war in most cases obsolete.
But any logical proposition can be carried to a ridiculous extreme. The fact that some military situations have required our presidents to act immediately, before reporting to the Congress, does not give a president blanket authority to use military force whenever and wherever he decides. This is not a political issue. We would be facing the exact same constitutional challenges no matter the party of the president. In fact, unless we resolve this matter, there is no doubt that we someday will.
This administration's argument that it has the authority to decide when and where to use military force without the consent of the Congress, using the fragile logic of “humanitarian intervention” to ostensibly redress domestic tensions inside countries where American interests are not directly threatened, is gravely dangerous. It does not fit our history.
I cannot conclusively define the boundaries of a “humanitarian intervention” and neither can anybody else. Where should it apply? Where should it not? Rwanda? Libya? Syria? Venezuela?
The historically acceptable conditions under which a president can unilaterally order the military into action are clear. If our country or our military forces are attacked; if an attack, including one by international terrorists, is imminent and must be preempted; if treaty commitments specifically compel us to respond to attacks on our allies; if American citizens are detained or threatened; if our sea lanes are interrupted, then—and only then—should the president order the use of military force without first gaining the approval of the Congress.
The recent actions by this administration, beginning with the months-long intervention in Libya, should give us all grounds for alarm about the potential harm to our constitutional system itself. We are in no sense compelled—or justified—in taking action based on a vote in the United Nations, or as the result of a decision made by a collective security agreement such as NATO when none of its members have been attacked.
I cannot conclusively define the boundaries of a “humanitarian intervention” and neither can anybody else. Where should it apply? Where should it not? Rwanda? Libya? Syria? Venezuela? Some of these endeavors may be justified, some may not. But the most important point to be made is that in our system, no single person should have the power to inject the United States military, and the prestige of our nation, into such circumstances.
I make this point from the perspective of someone who grew up in the military, and whose family has participated as citizen soldiers in most of our country’s wars, beginning with the American Revolution. I was proud to serve as a Marine in Vietnam. I am equally proud of my son’s service as a Marine infantryman in Iraq. I am also grateful for having had the opportunity to serve five years in the Pentagon, one as a Marine, and four as assistant secretary of defense and as secretary of the Navy. I am one of the strongest proponents of the refocusing of our national involvement in East Asia, and sponsored a Senate resolution condemning China’s use of force with respect to sovereignty issues in the South China Sea. I am not advocating a retreat from anywhere.
Modern circumstances require an adroit approach to the manner in which our foreign policy is being implemented. Legislation I introduced this week requires that the president obtain formal approval by the Congress through an expedited process before introducing military force for “humanitarian interventions,” where the historically acceptable conditions for unilateral action are absent.
Despite repeated calls from other senators and myself, the Congress—both Democrat and Republican—could not bring itself to have a formal debate on whether the use of military force was appropriate in Libya. Meanwhile, the administration conducted month after month of combat operations in Libya, with no American interests directly threatened and no clear treaty provisions in play. The administration—which spent well over $1 billion of taxpayer funds, dropped thousands of bombs on the country, and operated our military offshore for months—claimed that “combat” was not occurring, and rejected the notion that the War Powers Act applied to the situation.
My legislation addresses this loophole in the interpretation of our Constitution. It will serve as a necessary safety net to protect the integrity and the intent of the Constitution itself. It will ensure that Congress lives up not only to its prerogatives, which were so carefully laid out by our Founding Fathers, but also to its responsibilities.