What’s Wrong with the War Powers Debate (Part 2)

Stephen Griffin

It has been difficult for participants in the war powers debate to describe accurately the legal status quo.  Is the WPR’s constitutionality in dispute?  If it is constitutional, does it play a meaningful role?  Are AUMFs the constitutional equivalent of declarations of war?  What does the Constitution require in the context of the national security state built after WWII?  What is the legal position of the executive branch as represented in OLC opinions?  And so on.

To make progress in this fraught area, we need to think differently about the way the Constitution is enforced.  It is not only enforced through the judiciary.  The other institutions responsible for enforcing the Constitution, including political parties, do not enforce it all in the same way.  The political branches deserve that name because they do not necessarily follow a juridical model.  For example, they do not necessarily rely on or pay much attention to common law reasoning based on exemplar cases or historical practice.  So while the Constitution is enforced politically as well as legally, they do not look the same.

In this light, consider a recent attempt to make sense of the war powers debate by Jeh Johnson and Ethan Klaris, published in a 2026 issue of the Journal of National Security Law & Policy.  This article attracted attention because Johnson has practical experience.  He was General Counsel of the Department of Defense and later Secretary of Homeland Security in the Obama administration.  Johnson and Klaris interviewed several key members of Congress with respect to their views on war powers, albeit mostly Democrats.  Their subtitle states their fundamental theme: “Executive Expansion and Congressional Retreat.”  This is supposed to describe the course of war powers throughout American history.  I contend this is misleading as history, but it is actually difficult to find a steady throughline to contest their argument.  This is because they fail to set forth criteria that would enable us to determine whether, say, Congress was retreating or advancing.

This failure is part of a larger problem with the war powers debate.  Making distinctions about how and why Congress acts is long overdue.  Besides the distinction between juridical and political enforcement of the Constitution, we need also to think about the purpose of the “declare war” clause and the WPR.  Is it to make war constitutionally legitimate or, in the end, to slow down or stop contemplated military operations?  Some commentators appear to assume that if there were full compliance with the Constitution and the  WPR, this would sidetrack or terminate most proposed military adventures.  But that is a non sequitur, a literal “does not follow.”  The legal provisions respecting war are about legitimacy in the first instance, not about putting national security policy on a particular pathway. 

Similarly, consistent with the oft-repeated dictum that Congress is a “they,” not an “it,” some members of Congress, at least beginning in the Cold War and after, have always supported vigorous presidential leadership in foreign affairs, including with respect to decisions for war.  In contemporary times, some adhere to an “ideology of threat,” namely that the world is a dangerous place and must be periodically curbed through the application of overwhelming military force as determined by the president.  The late Senator Lindsey Graham was an excellent example.  Further, despite the genuine bipartisan support for the WPR, in the wake of Vietnam and with the return of Republican presidents, the parties developed an asymmetry with respect to war powers, especially in the Senate.  Democrats remained haunted by Vietnam for years, while Republicans shook the trauma off, figuring (like Nixon) that they were not ultimately responsible.

These distinctions are relevant in assessing the history of executive-legislative relations that is central to the Johnson and Klaris article.  But there is no sign they took them into consideration.  This leads to some rough going.  For example, what is the significance of AUMFs?  Johnson and Klaris imply that it is significant that Congress has declared war only five times in American history.  But if one adopts the view taken by Curtis Bradley and Jack Goldsmith, AUMFs are the same as declarations of war.  Suddenly, the universe of explicit congressional approvals (and thus, meaningful congressional involvement) expands.  For that matter, if we pay due attention to John Hart Ely’s argument on the Tonkin Gulf Resolution, it was fully effective to authorize (most) of the Vietnam War.  At least such views should be acknowledged.

If we take proper account of AUMFs, we have to substantially revise Johnson and Klaris’s partial history.  After all, AUMFs comply with the WPR.  The fact is that until we arrived at Trump’s Iran war, AUMFs were used to justify every significant military operation after the early Cold War period.  I put it that way because there is little doubt that Presidents Truman, Kennedy, Johnson, and Nixon held maximalist views about presidential war powers.  Perhaps their views were well grounded in historical practice, although that contention is the subject of a serious dispute.  But the WPR should be regarded as cutting off recourse to that sort of argument, as Congress consciously rejected the Nixon administration’s protestations in its override of Nixon’s veto.  In addition, by the Clinton administration’s intervention in Kosovo, Congress was full of members willing to contest vigorously presidential assertions of war powers.  By this time, Truman’s infamous decision to intervene in Korea unilaterally was regarded as a negative precedent, something to be avoided.  You won’t learn any of this, however, from the Johnson and Klaris article.

There’s one more point about the war powers debate in the twenty-first century that receives no mention from Johnson and Klaris.  This is the development of a clear asymmetry between how the Democratic and Republican parties treat war powers, especially in Congress.  While both parties seem to have abandoned the precedential effect of Truman’s Korea decision, the 2001 OLC opinion by John Yoo showed that we had not left the Cold War presidency entirely behind.  Yet Yoo’s maximalist vision of presidential war powers has zero currency on the Democratic side of the congressional aisle.  For that matter, there is no example of an OLC opinion during a Democratic presidency that comes anywhere near to embracing Yoo’s vision.  I suggest Trump’s Iran war decision shows, however, that Yoo’s opinion is not the weird outlier many assume.  There remains a strong strain of presidential unilateralism among Republicans.  This is a key context for understanding the present state of war powers.

Doing the history of war powers in a way sensitive to context makes Trump’s decision to go to war and his lack of attention to legal justification stand out all the more.  No, not all contemporary presidents are the same.  Furthermore, the multiple AUMFs technically legitimating wars that were policy disasters (such as Vietnam, Afghanistan, and Iraq) shows that more is at stake in deliberating about war than who makes the initial decision.  I’ll take this up in my last post.