Such objections have been lodged before about various U.S. operations around the world, ordered by presidents of both parties. They are rooted in the inherent tension in the Constitution between Article I, Section 8, which reserves to Congress the power to declare war, and Article II, Section 2, which designates the president as the commander in chief of the armed forces. Congress decides when a state of war exists between the United States and a foreign adversary; the president otherwise directs the actions of the U.S. military.
But does the president need to ask Congress every time he directs the armed forces of the United States to engage in violence? Jayapal seems to think so: Article I, she posted on X yesterday, “requires that military action be authorized by Congress.” Khanna was more specific, saying that this particular action needed to be approved—but that’s a small distinction without much of a difference.
Article I says none of these things, and in any case, America has not actually declared war on anyone since the spring of 1942. (This is a great bar bet, by the way: Most people will guess that the last U.S. declaration of war took place in 1941, after the Japanese attacked Pearl Harbor, but declarations against the minor Axis members Bulgaria, Hungary, and Romania took place six months later.)
Even Korea and Vietnam were not declared wars; rather, American presidents ordered troops into combat while relying on the self-defense provisions of the United Nations charter, as well as enforcing our legal obligations under treaties of alliance. Likewise, presidents have argued that acting in self-defense or to prevent further harm to ourselves or our friends does not require congressional approval.
Saturday, January 13, 2024
Use of Military Force Overseas
Some argue that President Biden should have sought congressional approval before the recent strikes in Yemen. Tom Nichols disagrees:
