Who's going to check presidential war power?

The answer lies in politics, not just law

On Saturday night, President Trump ordered airstrikes on three Iranian nuclear facilities. A commentariat already wary of how much executive power has expanded in the last 5 months immediately began arguing about the legality of these strikes: do they violate the War Powers Resolution? What kinds of inherent powers does the executive branch have? Why is Congress so passive, and what should it be doing instead? Thinking about this question in institutional terms also suggests that Trump’s actions are not unprecedented but rather part of a long trajectory of bipartisan executive expansion in the area of war powers. I am broadly sympathetic to this view, but also think that the institutional vantage point allows us to better understand how Trump-style politics pose unique dangers and have distinct vulnerabilities.

In some sense I offered my answer to most of these questions in a more general post a few months ago. The argument is that presidential power has grown up in a vacuum of legitimacy and collective action that characterizes the rest of the political system. The problems? Congress, the Democrats, the legacy news media. The usual culprits, nothing new here. But by looking at how their incentives are stacked against checking presidential power, we might be able to figure out how to start changing that.

Congress doesn’t really want the war power

The Constitution clearly gives the power to declare war to Congress, as well as the crucial power of the purse. Proponents of executive power argue that the executive has an inherent power to protect the nation, and is better positioned that Congress to respond quickly to emerging threats. The Congressional argument counters that serious commitment to a foreign conflict requires the deliberation and consent of the first and most representative branch.

That’s the system the Constitution sets up and the logic behind it. But the Constitution is a piece of paper, and the political incentives are really what drive how the branches of government behave. For Congress to take its war powers seriously, it would need to be a serious branch ready to discuss and engage with the sacrifices and tradeoffs of involvement in foreign conflict. There would need to be confrontation of the fact that conflicts can start out popular but lose support as they drag on. There would need to be discussion of how to think about national security that could draw on party principles but not be entirely constrained by partisan competition. Right now, there is some political will to reign in Trump’s use of war powers, mostly among Democrats - and Congress refused to authorize action in Syria, constraining Obama. But members of Congress refusing a president from the opposite party is not exactly the same as serious deliberation on the merits of getting involved in foreign conflicts. But this isn’t really how Congress works these days, and nothing about the short-term, partisan incentive structure really lends itself to what the Constitution demands.

The Democrats need a stronger party line

As polarization has deepened and the conflicts in Iraq and Afghanistan have fallen out of public favor, Democrats (and some Republicans) have developed anti-war arguments and ideas. But as in the post-9/11 era, the critiques tend to be procedural and Constitutional: the president has violated the War Powers Resolution and the Constitution by failing to consult Congress. That’s almost certainly true, but largely beside the point. For one thing, both the Constitution and the War Powers Resolution are set up to reserve some presidential power to address emergencies and security threats. If the Democrats want to be the less bellicose party – and it’s somewhat though not entirely clear that they do – then it would be valuable to come up with ideas about when war is and is not appropriate that aren’t just about the proper roles of the different branches.

News media have to resist shock and awe

A lot of us will remain mad about media coverage of the decision to invade Iraq for a long time (here’s a definitive text on the subject). News media were afraid to look unpatriotic then – just as many people were, which definitely muted dissent for a few years. The threats are much more serious now, with an administration that’s not afraid to use the state to punish its critics. But we’ve also seen that the Trump administration does not control the state, or, importantly, civil society, entirely. It’s essential to assert the right to hold power to account, and to build multiple sources of power to serve as a counterweight to the executive branch. News media, though, have to be able to explain some of this. For too long, presidential coverage has reflected a model where strength is good and weakness is bad, and established that as the main factor on which leadership is to be assessed. This is a bad frame under most circumstances but especially damaging when war powers are in question.

In other words, Constitutional questions are really political questions. Procedural arguments about what the president is and is not supposed to do are the beginning, not the end, of the conversation. The US system is set up as an endless argument over who is supposed to do what, over definitions, and over how to negotiate the tradeoffs between quick action and deliberation. Trumpian politics hold the distinct possibility to exploit this: they offer quick and easy answers, demonization of “others,” and hostility toward dissent. All of these have unfortunate precedent in our foreign policy history: punishing those who dissent during times of war and a public that remains largely ignorant of world affairs. At the same time, Trump’s political movement has generally been divisive and unpopular, and it’s hard to imagine him getting the same kind of deference – even inside his own party, but especially from others – in a long-term, difficult foreign conflict.

The system is also not set up for endless bad faith arguments or for a political culture that evades responsibility. It might seem pointless to talk about how the letter of the law constrains an administration that has largely shown contempt for those limitations on its power. But the preservation of a republic and the rule of law require us to use the system we have to adapt to the political reality we face.