Trump Has Given America a Constitutional Dilemma

Wait 5 sec.

This is an edition of The Atlantic Daily, a newsletter that guides you through the biggest stories of the day, helps you discover new ideas, and recommends the best in culture. Sign up for it here.Donald Trump has taken America into war with a country whose population is approximately the size of Iraq’s and Afghanistan’s combined. He has done this without making a case to the American people, and without approval of any kind from their elected representatives. His launching of hostilities (with the embarrassingly bro-themed name “Operation Epic Fury”) is the culmination of decades of expanding presidential powers over national-security issues, and Trump has now taken that expansion to its extreme conclusion, launching wars and using military power as he sees fit.Many of his critics are focused on the claim that the war is illegal under both U.S. and international law—and they are probably right about that. But Trump has already floored the accelerator and driven off the cliff. What are the options for Congress and the American people—the majority of whom do not support this conflict—to regain some control over a president conducting a war as if he were a medieval prince?Unfortunately, the few legal options available are laden with their own risks. Congress could decide to cut off funding for the war, which at this point could be as reckless an act as starting one. Men and women overseas did not choose to go, and they should at least be allowed to conduct their operations without worrying that Congress will simply turn off all funding. It could pass a resolution demanding an immediate end to hostilities—also a risky move.Congress does have a less dramatic option: It could invoke the 1973 War Powers Resolution, a law often discussed but rarely understood by the public. I have my own skepticism about using this law: In fact, I helped to avert its use in 1990 when I was working in the Senate during the first Gulf War.I’ll come back to that. Meanwhile, here’s where the law came from and what it actually says.The War Powers Resolution was adopted in 1973 during the waning days of the Vietnam War. The resolution imposes these limits on the power of presidents to wage war:The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.This seems simple enough: Unless Congress declares war or passes some law, or the United States is attacked, the president cannot send U.S. forces into harm’s way.Simple, but irrelevant. Presidents have gotten around this by using that last part about “national emergencies” to justify the use of force; multiple commanders in chief have also—rightly—noted that they may use military power in support of existing treaties (which are the law of the land) if an ally calls for American help.Nearly a decade before the War Powers Resolution existed, President Lyndon B. Johnson ramped up U.S. involvement in Vietnam by claiming self-defense—he said that U.S. ships had been fired upon in the Gulf of Tonkin by the North Vietnamese—and the need to honor a treaty commitment to South Vietnam. Congress rewarded him with the open-ended Tonkin Gulf Resolution, empowering him, “as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.”Many in Congress regretted issuing LBJ this blank check, and by 1973, American legislators realized that maybe handing out “all necessary measures” passes to presidents might not be a great idea, so they repealed Tonkin Gulf in 1971 and later passed the War Powers Resolution. President Richard Nixon vetoed the resolution, on multiple grounds of constitutionality and prudence, but the Congress of 1973 was in no mood for lectures from Nixon, and it overrode his veto.The problem is that the War Powers Resolution is both too weak and too strong. On the one hand, it requires that the president “consult” Congress only if possible. On the other hand, the resolution sets a firm clock on military action: Within 60 days of notifying Congress, the president “shall terminate any use of United States Armed Forces with respect to which such report was submitted” unless Congress declares war, extends the deadline, or cannot meet because of enemy attack. (That’s a Cold War provision—Congress can’t meet and approve military action if it’s been vaporized by a nuclear strike.)The law, drawn up half a century ago to stop a future LBJ or Nixon, is poorly written, and even now, members of Congress argue over its meaning. (Yesterday, for example, Senator Chris Murphy of Connecticut admonished Representative Mike Lawler of New York for cherry-picking some of the law’s language.) Assuming that Congress does not pass a law ending the operation, Trump, in theory, has almost two more months to continue the fight.This time limit is, in general, a bad idea. It’s a signal to the enemy that the United States has only two months to fight before its legislative and executive branches possibly go into conflict with each other. In any case, competent strategists do not put expiration dates on their operations; such limits give the opponent an incentive to negotiate in bad faith, to engage in information operations against American voters—or perhaps to up the level of violence and hope that congressional nerves are shaken so badly that even the steeliest president cannot keep a wartime political coalition together.I am familiar with these arguments because I made them in 1990 to my boss, the late Senator John Heinz, when I was his personal assistant for national security and defense. At the time, Heinz and a small group of Republican senators wanted to invoke the War Powers Resolution as President George H. W. Bush was heading toward war against Iraq. Heinz supported Bush’s intentions, and he wanted to avert a challenge to Bush’s authority. The War Powers Resolution is the law of the land, the senator told me, so wouldn’t it help Bush if Congress did its duty and invoked it?I was a lot less concerned about rogue presidents back then, but I was very concerned about time-limiting a war to dislodge Iraq from Kuwait. (Senator Heinz passed away 35 years ago, so I am not spilling secrets here.) I told him that I thought the resolution was of dubious constitutionality, but even more to the point, I asked him whether he was willing to have a floor fight to extend Bush’s authority two months after the war had started. At the time, the Republicans were the minority in Congress, and we talked about what such a messy political brawl might look like in the middle of a war. He and the other GOP senators dropped the idea.In the end, it didn’t matter. One day, after lunch with Bush, Heinz told me that Bush was determined to eject Saddam Hussein from Kuwait even if it meant his eventual impeachment, no matter what Congress said in the meantime. Yet Bush did go to Congress, and he got resolutions of support from both houses just before combat operations began in January 1991.Right now, Trump has no such worries of impeachment—the GOP controls both houses of Congress, and he has an iron grip on his party (at least until November). But the question remains of whether Congress has any ability to restrain Trump, who has used force more times in more places in just one year than any of his predecessors.At the least, Congress could use the threat of the War Powers Resolution clock to demand hearings and some explanations. Trump and his people have so far explained almost nothing about the rationale for the war. (The secretary of defense, meanwhile, gave a briefing today that amounted to a lot of chest-thumping nonsense about fighting “to win” without being bound by “stupid rules of engagement.”) And invoking the War Powers Resolution would be far less dangerous now that Iran’s military has largely been beaten and the U.S. and Israel have complete control over Iran’s skies.Congress is now set to debate the War Powers Resolution, but the fact that this debate is needed at all is a reminder of how much the exercise of American democracy has historically been predicated not on black-letter law but on trust, norms, and basic decency. Congress should not have to argue over whether to trigger the War Powers Resolution, and certainly not in the midst of conflict; better presidents, even when they have abused their authority, have obviated such a fight by going to Congress, speaking to the American people, and building a consensus for action. Trump, instead, has thrown U.S. service people into combat—and dared everyone to stop him.For now, Congress can try, at least, to use the law to rein in Trump and force him to answer questions about a war he started on his own. But Operation Epic Fury should also impel legislators to think about future ways to place presidential war powers back within the limits of a deliberative, constitutional republic.Related:From “America First” to “always America last”Robert Kagan: America vs. the worldHere are four new stories from The Atlantic:Trump’s hubris without idealism, by George PackerDavid Frum: On the Chagos Islands, Trump is right.Yair Rosenberg: The Israel of October 6 is never coming back.All eyes on CubaToday’s NewsPresident Trump said that America’s operation in Iran, which began on Saturday, is projected to continue for four to five weeks, adding, “We have capability to go far longer than that.” Defense Secretary Pete Hegseth didn’t rule out deploying American troops in Iran.Officials across countries have reported mounting casualties in the Middle East, following the strikes in Iran. Four U.S. troops have been killed and several wounded; at least 500 Iranian civilians have been killed; at least nine people died in Israel after an Iranian strike; officials in the United Arab Emirates reported deaths after Iranian strikes; and Lebanese authorities said that 31 people died in Israel’s retaliatory strikes against Hezbollah.Republicans are citing the U.S. attacks on Iran to pressure Democrats to end the Department of Homeland Security’s partial shutdown, warning that it could weaken domestic security. Democrats say they will continue to withhold funding unless the department changes immigration enforcement, even as agencies such as FEMA and TSA show early signs of strain.DispatchesThe Wonder Reader: Isabel Fattal explores stories on how to create an equal household.Explore all of our newsletters here.Evening ReadIllustration by Ben HickeyThe Impossible Predicament of the UninsuredBy Jenisha WattsThe day after Thanksgiving, I got a voicemail. A woman identified herself as a doctor at the University of Louisville hospital: “I believe I may have one of your family members here.”The message was hard to understand. Most of my family lives in Kentucky, so I didn’t know whom the doctor was referring to. I called the hospital, but kept getting put on hold. Then I tried my aunt—if someone was in trouble, she’d be the one to know. But she didn’t answer.A few hours later, her son got in touch with me. My aunt was the one in the hospital. She’d had an aneurysm on the right side of her brain, and it had burst. The drainage tube the doctors used to stop the bleeding kept slipping loose; after three tries, they finally got it to stick. Only then could they do surgery. My cousin FaceTimed me afterward, from the ICU. “Are you ready?” he asked. He angled the camera down to my aunt’s face, and I started sobbing like a sudden rainstorm.Read the full article.More From The AtlanticAmerica’s invaluable allyWhat Trump’s America looks like from ChinaRadio Atlantic: After Khamenei, what now?Trump tells The Atlantic that Iranian leaders want to resume negotiations.Inside Anthropic’s killer-robot dispute with the PentagonGraeme Wood: Why Khamenei is deadCulture BreakWill Heath / NBCExplore. Connor Storrie knew what the viewers of Saturday Night Live (streaming on Peacock) wanted to see, Paula Mejía writes.Watch. Industry (out now on HBO) is making a point about how power works in a world of interconnected crime, Spencer Kornhaber writes.Play our daily crossword.PSIn writing this story, I came across some photos and memos from my time working with Senator Heinz on his speech in support of what was about to be Operation Desert Storm. He and I spent days writing that statement, and like the good and judicious legislator he was, he agonized over the language and the reasoning. One day, he turned to me in the late-afternoon gloom of his office—it was December, and he hadn’t turned on the lights while he was pacing about—and said, “Am I doing the right thing here?”He was voting to send Pennsylvania’s sons and daughters to war, and he didn’t take that lightly. (He perhaps had a premonition: The last Scud missile Iraq fired during the war landed on a barracks of reservists from Pennsylvania.) But he made his case, read it into the record, and voted with a clear conscience. I wish I could feel that more of the people supporting Trump now took their responsibilities as seriously as John Heinz did.— TomRafaela Jinich contributed to this newsletter.When you buy a book using a link in this newsletter, we receive a commission. Thank you for supporting The Atlantic.