President Trump and the U.S. Constitution (and established norms of governing) have been on a collision course since day one of the Trump presidency, but there is one looming, and overdue, Constitutional conflict that has not been discussed generally and which could serve, surprisingly, as a corrective outcome of the Trump presidency: Congress needs to reclaim its role as the only branch empowered to declare war. In other words, Democrats need to stop Trump’s ability to begin a war. And, yes, this notion will only be effective if Democrats can take back at least one of the House or Senate — presumably (and preferably for these purposes) the House.
The Democrats’ ability to reclaim Congress’ institutional role as the sole war-making authority is as important, or more important, than the current hopes that reside in Special Prosecutor Mueller’s work or the talk of impeachment. Because of temperament, and precisely because of Trump’s scandals, the Special Prosecutor’s investigations and impeachment threats, President Trump is virtually certain to want to start a military conflict soon, both to maximize his power and to pursue a “wag-the-dog” strategy to distract from his political and legal liabilities. In that sense — when talking about countering the threat of a Trump presidency — removing and/or curtailing his Executive war-making powers is as important and a practical concern as is the current talk of impeachment. Indeed, while not commonly acknowledged, we may not effectively have the latter impeachment option without addressing the first impediment.
The starting point of this discussion, of course, is Article I, Section 8, Clause 11 of the Constitution, which provides that “The Congress shall have the power . . . To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” Since the last formal declaration of war in connection with World War II, however, Congress has increasingly abdicated its constitutional role and permitted the U.S. President to make war — either through gradual military deployments or sudden military actions. In short, we assume that President Trump can start a war — not because the Constitution permits this, but because Congress (to date) has largely abdicated its authority.
Like all Presidents, Trump knows this — and knows that involving the country in a war represents the best potential course (at least short term) for distraction, gaining popular approval, and consolidating political power for a President. It is no surprise then that Trump is shedding “establishment” cabinet officials and aides and adding a known — indeed, avowed — warmonger like John R. Bolton as National Security Advisor. As one writer put it, “A former U.N. Ambassador currently best known as a Fox News pundit, Bolton has advocated far harder positions than Trump, including bombing campaigns, wars, and regime change. The late-day news flash sent chills across Washington, even among some Republicans.” See also “It’s time to panic now. John Bolton’s appointment as national security advisor puts us on a path to war.”
In “America Takes the Next Step to Tyranny” Andrew Sullivan (quoting Plato) writes how the war-making authority is an indispensable tool of authoritarian figures such as Trump:
And then last night, we saw McMaster fall on his sword, replaced by John Bolton, an unrepentant architect of the most disastrous war since Vietnam, a fanatical advocate for regime change in Iran, an anti-Muslim extremist, and a believer in the use of military force as if it were a religion. And this, of course, is also part of the second phase for Plato’s tyrant: war. “As his first step, he is always setting some war in motion, so that people will be in need of a leader,” Plato explains. In fact, “it’snecessaryfor a tyrant always to be stirring up war.”
Agreed. And Trump, once again, has proved the Founder’s original wisdom — war-making authority should not be placed in the hands of a single, randomly elected, official.
It is no coincidence that John (“Bomb Iran”) Bolton — previously considered and rejected by this administration (because of his mustache)— is being elevated precisely at the same moment that Robert Mueller’s investigation is gaining steam, expanding into Trump’s business finances, flipping witnesses, and pursuing indictments. President Trump increasingly feels cornered and threatened — if nothing else, he feels powerless.
Sure as shit, we all know where this is leading Trump: war and the pageantry of being a “commander-in-chief.”
And that is where the Democrats regaining one or both chambers of Congress comes in, with Democrats reclaiming the traditional and singular role of Congress to declare war. Fully considered, that will likely be the most important, concrete and crucial thing that Democrats can achieve in the near term, including, yes, the politics of impeachment and waiting hopefully for some Mueller bombshell that compels a Republican reaction.
Don’t get me wrong — winning one (or even both) chambers won’t magically win this fight. Democrats will need to exert concerted, institutional spine, in a likely protracted inter-branch struggle. And there are specifics, like the War Powers Act and the (abominably construed) last AUMF. These can be the subject of further, more arcane posts, but they are not outright impediments.
The simple matter is that, combined with the power to declare war, Congress has the “power of the purse.” As a result, Congress can prevent war when it wants to. (It was the Democratic Congress’s power of the purse that finally ended the Vietnam War.) And, two further things: (i) no modern President has successfully instigated and prosecuted a war without Congressional support, even if such support was passive, and (ii) does anyone doubt for a second that Republicans would be unable to constrain a Democratic president under the scenario I described above? Trust me (or Dick Cheney), this is doable. (Remember when Presidents got to fill Supreme Court vacancies?)
So . . . Godspeed, Mr. Mueller. And I greatly hope, despite all plausible obstacles, for the possibility of impeachment. Those goals are important. But I know one crucial and grounded reality that may have the most far-reaching consequences — Democrats need to win back at least one chamber of Congress and they need to reclaim and reassert Congress’s constitutional role as the sole arbiter of whether this country goes to war. Nothing else is more important, nor likely will be more effective at curtailing Trump’s abuse-of-powers.
(And we get the added bonus of returning to a system where Congress, the most directly and democratically elected body, makes these war decisions, as the Founders wisely set it up.)