THE BLOG
09/12/2013 10:42 am ET Updated Nov 12, 2013

Responsibility for War A La Carte

In his address to the nation on Tuesday night, President Barack Obama offered a plan to deal with the immediate issue of Syria, but no plan to resolve the long term issue of who has the power to commit the nation to war. The president claimed that he, acting alone, can authorize acts of war, but can if he wishes ask Congress to approve and had done so in the case of Syria. In contrast, Congress has passed a statute claiming that it alone has the power to authorize war. This impasse over who has responsibility for war has hindered the nation in dealing with Syria and will, until resolved, hinder the nation in dealing with future crises.

The Constitution empowers Congress alone to declare war, but Congress has declared only five wars, the last being World War II. The vast majority of the country's wars have been undeclared. The Constitution says nothing explicit about whether presidents must get approval for undeclared wars, but until 1950, presidents sought authority from Congress, either before using force or together with using it to respond to an emergency. For example, President John Adams persuaded Congress to authorize the Naval War with France (1798-1800) and President Thomas Jefferson persuaded it to authorize the First Barbary War (1801-05). In 1950, however, President Harry Truman put troops into Korea in 1950 without authorization from Congress. His rationale was that American forces were conducting a United Nations-approved "police action." Some "police action." Our forces suffered more than 33,000 deaths and 8,000 missing in action.

Congress acquiesced in presidential wars in Korea and elsewhere so that its members could avoid voting for or against a war before knowing how their constituents would end up feeling about it. That way, legislators can march in the parade if a war proves popular, but put the entire blame on the president if it does not.

In 1973, amid controversial wars in Vietnam, Cambodia, and Laos -- some congressionally authorized and some not, members of Congress decided that they were honor bound to decide whether to authorize war. Over the veto of President Richard Nixon, Congress passed the War Powers Resolution. This statute requires presidents to request authority from Congress within forty-eight hours of putting our military forces into "hostilities" and forces Congress to vote on the request within 60 days. So presidents can respond to emergencies pending authorization.

Over the years, presidents of both parties have interpreted the statute to evade its purpose, yet have sought authority from Congress when they want legislators to provide political cover. President Obama is an example. As a presidential candidate in 2007, he insisted that the president must seek authority for combat from Congress. Then, in 2011, he failed to do so with Libya. In 2012, he announced that President Assad would cross a "red line" if he used chemical weapons. After Assad crossed that red line repeatedly, President Obama was poised to strike Syria without seeking authority from Congress until declining public support made it advantageous to ask Congress to take responsibility.

Although the War Powers Resolution has proved conspicuously ineffective in forcing presidents to consistently seek authority for sending forces into hostilities, Congress has done nothing to put teeth into it. Vice President Joe Biden, as a senator in 1995 explained that his fellow legislators have failed to do so because they "do not have the political courage to take a stand on whether or not we should go to war."

Yet, the public distrusts presidents alone having the power to launch wars. In a 2011 poll during the Libya crisis, the public by a three to one margin thought that the president should seek approval for military action. In a poll released the day before President Obama asked Congress to authorize action in Syria, the public agreed by a five to one margin, that "President Obama should ... be required to receive approval from Congress before taking military action" there.

Requiring the president to get authorization from Congress, either before using force or together with using it in response to an emergency, would help close the gap of distrust between the public and the president as commander-in-chief. We need that. As President Ronald Reagan's Secretary of Defense, Caspar Weinberger, stated "before the U.S. commits combat forces abroad, there must be some reasonable assurance we will have the support of the American people and their elected representatives in Congress... We cannot fight a battle with the Congress at home while asking our troops to win a war overseas."

A clear assignment of responsibility for war to Congress would also clarify the president's job, which is to lead within our democracy. He would have known that he should not lay down the "red line" without assurance from congressional leaders that he could enforce it. If it were laid down with such assurance, he could have responded to President Assad's crossing of it by using force and calling Congress back into emergency session to authorize further force if needed.

President Obama and leaders in Congress should establish a consistent rather than a la carte way for Congress to take responsibility for war.

Mr. Schoenbrod is a professor at New York Law School.

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