When American Airlines Flight 11 struck the North Tower of the World Trade Center, millions of Americans instinctively thought it was a horrible accident. Then the second plane struck, and we realized grave coincidences are for the naïve.
Al-Qaida’s attacks of Sept. 11, 2001, in New York, at the Pentagon, and on United Flight 93 in Pennsylvania initiated two decades of conflict. We fought in Afghanistan and Iraq and, when al-Qaida’s genie escaped the bottle, on the Arabian Peninsula, in Africa, and globally.
Whether those wars achieved durable political objectives is, at best, debatable. But the decisions to start those wars were national decisions, made by the president with Congress’ endorsement through separate Authorizations for the Use of Military Force, or AUMFs.
That is how a constitutional republic should decide to wage war.
Twenty-five years later, we should revisit where we are.
The U.S. Constitution is not vague: war power — the authority to commit U.S. armed forces into international armed conflict — is shared between Congress and the president, but Article I gives Congress the heavier burden: to declare war, raise and support armies, provide and maintain a navy, regulate the armed forces, and control the money that sustains them.
James Madison gave voice to the framers’ preference that Congress hold these powers in Federalist 51: “In republican government, the legislative authority necessarily predominates.”
The idea that Congress is “co-equal” to the executive and judicial is a convenient shorthand for the Constitution’s set of checks and balances, but it was never the framers’ intent. Congress is, by design, first among equals.
Article II, of course, grants the president power as “commander in chief of the Army and Navy of the United States” without defining that role. In Federalist 69, Alexander Hamilton observed the power was intended as “nothing more than the supreme command and direction of the military and naval forces.”
“Command.” Every member of the military understands that word. It means you lead your formations, but not that you choose your battles. The president commands the military. Congress decides when the nation goes to war.
There are obvious exceptions. A president must be able to defend the country when emergencies arrive faster than Congress can deliberate. Daniel Webster’s formulation arising from the Caroline affair of 1837 described such necessity as “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”
But, Webster implies, when there is time for deliberation, Congress should deliberate to ensure American lives and resources are being committed to achieve clearly articulated strategic purposes supported by the people’s chosen representatives.
In practice, presidents have accumulated power over time to themselves to employ the armed forces without even consulting Congress, much less seeking authority. This creeping accretion of power, unchecked by Congress, comes at no small cost: not only is it untrue to the Constitution’s design, it also disenfranchises the American people from the war decision by cutting their representatives out of the loop.
Presidents write themselves blank checks that are ultimately cashed in appropriations, munitions, international standing, and blood. They also lower the barriers to future military adventurism.
Congress tried, with mixed results, to reassert its primacy with the War Powers Resolution of 1973, which requires the president to communicate to Congress the committal of troops within 48 hours, and to remove them after 60 days. Various presidents have challenged the constitutionality of the resolution.
In the decades after, Congress sought to assert itself by passing Authorizations for the Use of Military Force, or AUMFs, for Desert Storm, after post-9/11 to target forces responsible for 9/11, and another AUMF for Operation Iraqi Freedom.
Years before, Justice Robert Jackson had addressed the constitutional tension in his concurrence in 1952’s Youngstown Sheet & Tube Co. v. Sawyer, proposing a three-pronged test based on Congress’ actions.
When the president acts with congressional authorization, presidential power is at its zenith. When Congress is silent, the president operates in a “zone of twilight.” But when the president acts contrary to Congress’ expressed will, presidential power is at its “lowest ebb,” confined only to Article II’s instruction to command, not decide.
Presidents from both parties have been negligent. President Bill Clinton flexed his commander-in-chief authority in Bosnia, and President Barack Obama ordered U.S. military forces to take part in strikes to enforce a U.N. Security Council Resolution, both without congressional authorization.
President Donald Trump’s 2020 strike on Qasem Soleimani, the former head of the Islamic Revolutionary Guard Corps — Quds Force, cited a “threat of imminent attack” and “important national interests.” In response, Congress passed a joint resolution terminating the use of force against Iran, which Trump rejected by veto. In his second administration, President Trump has initiated two separate military campaigns — strikes against alleged drug boats in the Caribbean Sea, and the ongoing armed conflict against Iran — without congressional authorization.
Congress has not been silent, but has also not raised its constitutional voice. Both the House and Senate passed a War Powers Resolution directing the president to end hostilities against Iran, but the resolution does not have the full status of law, and creates no consequences when ignored.
This is no way to run a wartime railroad, regardless of who occupies the White House.
The 25th anniversary of the 9/11 attacks is a good time to refresh our memory of our response to those responsible. President George W. Bush went to Congress. Congress debated the question and authorized force against those responsible for 9/11. Congress separately authorized force against Iraq the following year.
The post 9/11 military actions against al-Qaida and the supporting Taliban were a just and constitutional use of force, authorized according to a constitutional process that would have made the framers of the Constitution proud. Even the attack on Iraq, with its dubious justifications, followed a similar Constitutional path, with responsibility shared between the president and Congress.
The debate and delay inherent in that process are features, not bugs. They force the elected branches and the American people to confront the most consequential decision a nation can make before the first missile is launched, rather than explaining and financing the decision afterward.
The framers understood the decision to wage war is too consequential to entrust to one person.
Twenty-five years after Sept. 11, Congress should remember it too.
