President Trump's action on Iran has created a constitutional crisis exacerbated by Congress' long-term abdication of its responsibilities over making war. Not only has President Trump taken military action without congressional approval, but he holds us captive to his next move. We must wait to see if the president will respond to Iran's response, who may then respond, prompting the president to respond, and on and on.
But the Constitution's framers wanted to avoid unilateral presidential war-making.
The framers were clear on this matter: Congress, not the president, had the power to take the country to war. If the nation were to go to war, it must do so with the approval and under the direction of Congress--the branch of the government directly elected by and directly accountable to the people.
During debate on whether Congress or the president should be able to "make war," Pierce Butler wanted to vest the power in the president, "who will have all the requisite qualities, and will not make war but when the nation will support." None of the other delegates showed Butler's faith in executive restraint, however. Eldridge Gerry remarked that he never expected to hear in a republic "a motion to empower the executive alone to make war." George Mason was "against giving the power of war to the executive, because [he was] not safely to be trusted with it." Madison and Gerry moved to give Congress the power to declare war, "leaving the executive the power to repel sudden attacks." The motion carried by a vote of 8-1.
The president was to be commander-in-chief, but this did not give the president any affirmative military powers. Rufus King noted at the convention that while Congress would declare war, the president, as the nation's chief executive, would "conduct" it. The framers intended the commander-in-chief power to allow the president to defend the country from "sudden attacks" when there was no time to convene Congress, but not go any further.
The framers wanted to allow the president to carry out Congress' intentions for war--but not to invest the president with unlimited ability to use military force whenever and wherever he chose. Indeed, the framers even seemed to strip the power to retaliate from the president by keeping to Congress the power to issue letters of marque and reprisal (the 18th century version of military contractors)--a power exercised at the president's request in 1803.
President Trump will abuse his constitutional power if he orders any additional retaliation. But presidential abuse of the Constitution's war powers is one of the few remaining vestiges of bipartisanship in Washington.
Early presidents including Jefferson and Lincoln pushed the limits of their powers to use American military force without congressional approval. More recently, Presidents Carter, Reagan, Bush I and II, Clinton, and Obama used military force without congressional approval, often declaring that they had the inherent power to do so--a sentiment that shocked Eldridge Gerry at the 1787 Constitutional Convention. Nevertheless, Republican and Democratic presidents sought congressional approval for major military actions: Bush I in Iraq, Clinton in Kosovo, Bush II in Iraq and Afghanistan, Obama in Syria.
President Trump, who professes to love the Constitution as it was written, should honor its words. He needs to come before Congress--like his immediate predecessors--to ask for authorization to use military force against Iran. He should provide Congress and the American people an explanation for his drone attack on General Soliemani, as well as a coherent justification why further action is necessary. Congress can decide whether to authorize further action only after a full and transparent debate.
This is how the framers thought the nation would go to war. It's time to return to what they intended. We deserve no less.
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John M.A. DiPippa is dean emeritus and distinguished professor of law and public policy at the UA-Little Rock William H. Bowen School of Law.
Editorial on 01/10/2020