Reforming the War Powers Relationship Between Congress and the President in the Post-Trump Era

REFORMING THE WAR POWERS RELATIONSHIP BETWEEN CONGRESS AND THE PRESIDENT IN THE POST-TRUMP ERA

Scott S. Barker1

“The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”2

The American people have spoken and they have relegated Donald Trump to a one-term presidency. Much has already been written about his norm-busting conduct as the forty-fifth President of the United States, and there is certainly more to come. Many, if not most, of the books published thus far fall into the “tell all” genre, written by people who were “in the room” and designed to describe and attempt to explain his frequently erratic behavior and its impact on the well-being of the Republic.3 An important and serious standout in this cascade of commentary is the recently published book, After Trump – Reconstructing the Presidency,4 a bipartisan product of a collaborative effort by two highly-credentialed and experienced presidential lawyers from opposite ends of the political spectrum, Bob Bauer and Jack Goldsmith. Bauer served in President Barack Obama’s Office of White House Counsel and was legal counsel to the 2020 Biden presidential

1 Scott S. Barker is a 1970 distinguished graduate of the United States Air Force Academy and a Rhodes Scholar. While studying at Oxford University he earned a Master’s degree in Russian history. Barker served on active duty as an intelligence officer for five years, with assignments in Southeast Asia and the Pentagon. In 1978, he resigned his commission and entered Harvard Law School graduating cum laude in 1981. Barker has practiced civil litigation in Denver for the past 39 years and is a Fellow of the American College of Trial Lawyers. An avid student of the Constitution, he has authored two books on presidential impeachment, IMPEACHMENT A POLITICAL SWORD and THE IMPEACHMENT QUAGMIRE. This Article is adapted from the manuscript of his latest book on the Constitution, which addresses the war powers relationship between congress and the president. 2 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring) (enjoining President Truman from seizing steel mills during the Korean War). 3 Elizabeth A. Harris & Alexandra Alter, Trump Books Keep Coming, and Readers Can’t Stop Buying, NY TIMES (Aug. 31, 2020), https://www.nytimes.com/2020/08/31/books/trump-books.html. 4 See generally, BOB BAUER & JACK GOLDSMITH, AFTER TRUMP: RECONSTRUCTING THE PRESIDENCY (2020).

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campaign.5 Shortly after his inauguration, President Biden appointed Bauer as co-chair of a bipartisan commission on Supreme Court reform.6 Goldsmith is a Harvard Law School professor and a well-known conservative legal scholar, who served in the Department of Justice’s Office of Legal Counsel (OLC) under President George W. Bush.7

Bauer and Goldsmith suggest reforms of the presidency across a broad spectrum of issues, the need for which has been highlighted by President Trump’s conduct as our Chief Executive. One of those issues, addressed in Chapter Twelve of their book,8 touches on a topic the Author has been researching for the past two years: the war powers relationship between Congress and the President. Reforming this relationship should be a matter of national priority. This Article builds on the dialogue in After Trump and presents arguments in the Author’s forthcoming book publication.9

Why is now the time for the United States to prioritize rebalancing the war powers relationship between Congress and the President? Arguably, the country and its political leaders are at capacity combatting the COVID- 19 health crisis and rebuilding the economy devastated by the pandemic. First, reviewing U.S. history reveals that war is inevitable; the country has been at war for ninety-three percent of its existence.10 The constitutional machinery for deciding when and where United States will fight the next war—and how long it will remain fighting it once begun—needs to be repaired before it’s necessary to use it again. Second, and equally important, is the fact that the presidency’s arrogation of war powers since World War II is the center-piece of expanded executive power across the entire breadth

5 KAREN FREIFELD, Biden Legal Adviser Preps for End Game as Election Nears, REUTERS (Oct. 30, 2020), https://www.reuters.com/article/us-usa-election-bauer/biden- legal-adviser-preps-for-end-game-as-election-nears-idUSKBN27F1G5. 6 Tyler Page, Biden Starts Staffing a Commission on Supreme Court Reform, Politico (Jan. 27, 2021, 2:52 PM), https://www.politico.com/news/2021/01/27/biden-supreme- court-reform-463126. 7 JACK GOLDSMITH, http://jackgoldsmith.org/about/ (last visited Feb. 3, 2021). 8 BAUER & GOLDSMITH, supra note 4, at 281-314. 9 SCOTT BARKER, THE KINGS OF WAR – HOW OUR MODERN PRESIDENTS HIJACKED CONGRESS’S WAR-MAKING POWERS AND WHAT TO DO ABOUT IT (forthcoming publication 2021).

10 CHRISTAN OORD, Believe it or Not: Since Its Birth The USA Has Only Had 17 Years of Peace, WAR HISTORY ONLINE (Mar. 19, 2019), https://www.warhistoryonline.com/instant-articles/usa-only-17-years-of-peace.html.

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of American government and politics.11 If we don’t reverse that trend, we may one day wake up to realize that, as Justice Felix Frankfurter warned in 1952, with the slow unchecked disregard of the restrictions that are meant to fence them in, U.S. Presidents have become elected autocrats.12

The Constitutional Moorings

To understand the necessity for reform it is essential first to review the war powers regime established by the framers of the Constitution and compare it to the drastically altered view of that regime held by modern Presidents.

Article I, section 8, of the Constitution grants Congress the power to “declare war,” to “raise and support armies,” and “to provide and maintain a navy.”13 The one and only war power assigned the President is contained in Article II, section 2: “[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United Sates.”14 While the Constitution does not specify the Commander in Chief’s duties and powers, it clearly does not give the President the power to declare war.

The debates at the Constitutional Convention in the summer of 1787, and during the ratification process that followed, make it clear that the founders did not want a single person, namely the president, to have the power to commit the nation to war. South Carolinian Charles Pickney’s statement (recorded in James Madison’s detailed notes) before the delegates on June 1, 1787, captures the sentiment of the assembly. He “was for a vigorous Executive but was afraid the Executive power of (the existing) Congress might extend to war and peace, which would render the Executive a monarch, of the worst kind, towit [sic] an elective one.”15 During the Pennsylvania ratification convention, James Wilson, who was also a framer and with the benefit of the completed document, was more concrete than

11 MATTHEW WAXMAN, Presidents and War Powers, LAWFARE (Nov. 15, 2018, 2:29 PM) (book review) https://www.lawfareblog.com/presidents-and-war-powers. 12 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952). 13 U.S. CONST. art. I, § 8, cl. 11-13 14 U.S. CONST. art. I, § 2, cl. 1. 15 Diary entry from James Madison (June 1, 1787), in THE RECORDS OF THE FEDERAL CONVENTION OF 1787, VOL. I hist. ns. 64-65 (Max Farrand ed., 1911), [hereinafter Farrand, Vol. I].

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Pickney. Wilson assured his fellow Pennsylvanians that “[i]t will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”16

George Washington was steeped in the founding generation’s theory and practice of war-making. He was Commander in Chief of the Continental Army during the Revolutionary War, presided at the Constitutional Convention, and was the first President.17 Writing in 1793, Washington succinctly captured the key role played by Congress in deciding on war:

“[t]he Constitution vests the power of declaring war with Congress; therefore, no offensive expedition of importance can be undertaken until they have deliberated upon the subject, and authorized such a measure.”18

As Washington knew well and as the Constitution’s text reflects, the framers distributed the war powers between Congress and the President. With the exception of the necessity to defend against a sudden attack, the Constitution gives Congress the power to make a collective decision on whether the Nation should go to war.19 Once declared by Congress, the President, as Commander in Chief of the armed forces, takes the lead in conducting the war, subject to Congress’s continuing powers of the purse and to raise and support armies.20

From 1789 to 1950, as the framers intended, Congress made the decision to go to war. During that period, Congress passed and the President signed, eleven formal declarations of war relating to five wars: the War of 1812 (James Madison); the Mexican War (1846, James K. Polk);

16 Charles A. Lofgrent, War-Making Under the Constitution: The Original Understanding, 81 YALE L.J. 672, 685 (1972) (quoting James Wilson). 17Biography of George Washington, MOUNT VERNON, https://www.mountvernon.org/george-washington/biography/ (last visited Feb. 3, 2021). 18 Letter from George Washington to William Moultrie (Aug. 28, 1793), in THE PAPERS OF GEORGE WASHINGTON, PRESIDENTIAL SERIES, VOL. 13, 570-71 (Christine Stemberg Patrick, ed., 2007) [hereinafter Patrick]. 19 JAMES MADISON, RECORDS OF THE FEDERAL CONVENTION (1787), reprinted in THE RECORDS OF THE FEDERAL CONVENTION OF 1787, VOL. II hist. nn. 318-19 (Max Farrand, ed., 1911) [hereinafter Farrand Vol. II] (explaining that the president’s power to defend against a sudden attack is not expressly stated in the Constitution. However, the debates at the Constitutional Convention make it clear that it was the framers’ intent that the Executive have such power). 20 U.S. CONST. art. I, § 8, cl. 11-12.

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the Spanish-American War (1898, William McKinley); World War I (1917, Woodrow Wilson); and World War II (1941, Franklin D. Roosevelt).21 In World War I, there were separate declarations of war against Germany and Austria-Hungary.22 In World War II, the United States declared war separately against Japan, Germany, Italy, Bulgaria, Hungary, and Romania.23

Significantly, in both world wars, the Presidents who were Commanders in Chief at the time sought declarations of war from Congress. On April 2, 1917, before a joint session of Congress, President Woodrow Wilson asked Congress to declare war against Germany.24 In doing so he said that it would be “neither right nor constitutionally permissible” for him unilaterally to decide for war.25 Echoing the founder James Wilson, President Wilson was keenly aware of what “a fearful thing [it was] to lead this great peaceful people into war, into the most terrible and disastrous of all wars, civilization itself seeming to be in the balance.”26 Nearly thirty- five years later, President Franklin D. Roosevelt sought Congress’s declaration of war against the Japanese Empire in response to its surprise attack on the U.S. Navy at Pearl Harbor on December 7, 1941.27 World War II was the last instance the United States officially declared war.

Modern Presidents Have Grabbed the Power to Decide on War

The long-standing approach to war-making changed abruptly with President Harry Truman, who committed tens of thousands of U.S. troops to combat on the Korean Peninsula in 1950, without seeking a declaration

21 Declarations of War by Congress, U.S. SENATE, https://www.senate.gov/about/powers-procedures/declarations-of-war.htm (last visited Feb. 20, 2021). 22 U.S. Entry into World War I, 1917, DEP’T OF STATE, OFFICE OF THE HISTORIAN, https://history.state.gov/milestones/1914-1920/wwi (last visited Feb. 3, 2021). 23 JENNIFER K. ELSEA & MATTHEW C. WEED, CONG. RSCH. SERV., No. 31133, DECLARATIONS OF WAR AND AUTHORIZATIONS FOR THE USE OF MILITARY FORCE: HISTORICAL BACKGROUND AND LEGAL IMPLICATIONS2014) [hereinafter ELSEA & WEED]. 24 55 CONG. REC. 102, 102 (daily ed. April 2, 1917) (President Woodrow Wilson’s War Message). 25 Id. 26 Id. at 104. 27 Speech by Franklin D. Roosevelt, New York (Transcript), LIBR. OF CONGR., https://www.loc.gov/resource/afc1986022.afc1986022_ms2201/?st=text (last visited Feb. 3, 2021).

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of war from Congress.28 Instead, he claimed an “inherent,” or “plenary” authority as Commander in Chief to do so.29 Truman remarked, “I don’t ask their [Congress’s] permission – I just consult them.”30 Since Truman, most Presidents have embraced a view of their Commander in Chief powers that significantly exceeds the original intent of the framers. For example, Lyndon Johnson stated in a public speech during the Vietnam War, “[t]here are many, many who can recommend, advise and sometimes a few of them consent . . . but there is only one that has been chosen by the American people to decide.”31

By 1973, Americans had become weary of the war in Southeast Asia. Congress concluded that the time was ripe for legislating a scheme that would reassert its constitutional role in the decisions regarding commencement and continuation of war, while giving the President flexibility to respond to crises around the globe that required the immediate use of U.S. military force. The result was the War Powers Resolution, passed by Congress, over President Richard Nixon’s veto, on November 7, 1973.32

The purpose of the War Powers Resolution was stated in Section 2(a):33

“It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.”

28 DEAN ACHESON, PRESENT AT THE CREATION:MY YEARS IN THE STATE DEPARTMENT 402-13 (2019); MICHAEL BESCHLOSS, PRESIDENTS OF WAR 457 (2018) [hereinafter BESCHLOSS]. 29 MEMORANDUM FROM THE DEP’T OF STATE, ON THE AUTH. OF THE PRESIDENT TO REPEL THE ATTACK IN KOREA, H. R. REP. NO. 2495 (1950) [hearinafter Memorandum]. 30 BESCHLOSS, supra n. 28, at 472. 31 ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 178 (2004). 32 War Powers Act of 1973, Pub. L. No. 93-148, 87 Stat. 555(codified as 50 U.S.C. §§ 1541-1548). 33 50 U.S.C. § 1541(a).

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To fulfill its purpose, the Resolution began by directing the President, “in every possible instance,” to consult with Congress before introducing U.S. troops “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.”34 At the same time, the President could commit U.S. armed forces to “hostilities” for a period of sixty days, without a congressional declaration of war.35 In the absence of congressional action within that period, the President was obligated to cease the military action.36 Congress also reserved the power, “at any time” to direct the President to remove U.S. forces from armed conflict “if the Congress so directs by concurrent resolution.”37

President Nixon’s veto was based on his view that “the restrictions this resolution would impose upon the authority of the President are both unconstitutional and dangerous to the best interests of our Nation.”38 In the face of presidential opposition in the years since its passage, and the constitutional infirmity of some of its key provisions, the War Powers Resolution has never matched its expectations. In fact, as discussed below, it has been a failure.

President George W. Bush, whose administration was fraught with war, embraced the most extreme version of the President’s war powers. In waging his war on terror following the 9/11 terrorist attack, Bush was guided by the Department of Justice Office of Legal Counsel (OLC)’s advice in September 2001:

“. . . [t]he Constitution vests the President with the plenary authority as Commander in Chief and the sole organ of the Nation in its foreign relations to use military force abroad. . . . It has long been the view of this Office that the

34 50 U.S.C. § 1542. 35 50 U.S.C. §1544(b) (explaining that the sixty-day period could be extended by another thirty days if “the President determines and certifies to Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.”). 36 Id. 37 50 U.S.C. § 1544(c). 38 Then-President Richard Nixon Veto of the War Powers Resolution, Address to the House of Representative (October 23, 1973), in THE AMERICAN PRESIDENCY PROJECT (John Woelley & Gerhard Peters, eds.), available at https://www.presidency.ucsb.edu/node/255456.

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Commander in Chief Clause is a substantive grant of authority to the President and that the scope of the President’s authority to commit armed forces to combat is very broad.”39

There were strong echoes of President Truman in this advice. A year later, the OLC extended the Truman legacy to support President Bush’s invasion of Iraq to remove Saddam Hussein from power:

“As this memorandum makes clear, even prior to the adoption of the Resolution [2002 Iraq War Authorization for the Use of Military Force] the President had sufficient constitutional and statutory authority to use force against Iraq.”40

Contrast this aggressive position with President Washington’s 1793 statement that only Congress has the power to authorize “major expeditions.”41

Why Did Congress Lose Its Grip?

Although there has been some resistance from Congress—most prominently, the 1973 War Powers Resolution—it has largely acquiesced in this presidential power grab. What is a possible explanation for this congressional acquiescence? While the answer is complex, it can be distilled into three chief reasons: (1) America’s rise to super power status as a result of World War II and the resulting changes in the attitude toward what the founders called a standing army and the role of the modern military in advancing our national interests abroad; (2) a specious theory of their constitutional war power advanced by our post-World War II Presidents; and (3) the failure of Congress to assert its constitutional war-making role.

39 THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 3-4 (Karen J. Greenberg & Joshua L. Dratel, eds., (2005)). 40 Even though then-President Bush and his legal advisors did not believe he needed congressional authorization to invade Iraq, he requested and received such authority in the “Resolution” referred to in the quote. Bush sought congressional authorization as a matter of politics, not constitutional requirement. OFFICE OF LEGAL COUNSEL, OPINION MEMORANDUM ON AUTHORITY OF THE PRESIDENT UNDER DOMESTIC AND INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ at 144, n. 1 (2002). 41See Patrick, supra note 18.

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Modern America’s Super Power Status Has Increased the President’s Power

Starting with perhaps the obvious, the world today hardly resembles the one in which the Constitution was drafted and ratified. At its founding, America’s global position was weak and isolated from the rest of the world by two oceans. In his farewell address, President Washington urged his fellow citizens to avoid foreign entanglements, except to the extent that commerce with Europe would help to fuel the fledgling national economy.42 America’s energies were to be directed at conquering the continent that lay to the west of the Atlantic coast states comprising the nation at the time. None of this required a large peacetime military force, which was consistent with the founding generation’s antipathy toward what they called a standing army. In this world, the Commander in Chief simply had no army to command.

World War II laid the foundation for modern America. It fundamentally altered the alignment and relative power of the nations of the world.43 America, along with the Soviet Union, sky-rocketed to superpower status. The Cold War followed immediately. It was viewed as an existential must-win battle between two vehemently opposed ideologies, requiring the existence of a large conventional force and a powerful nuclear arsenal.44 The Cold War shaped the views of America’s foreign policy and military establishment for four decades.45 Those views led to the U.S. commitment to a lengthy major land war in Asia, which sought to prevent the Vietnam domino from falling into communist hands.46 That philosophy also dictated the development of a large and devastatingly powerful nuclear arsenal and a vast array of delivery systems and associated highly-trained, large body

42 George Washington, Farewell Address (Sept. 19, 1796) (transcript available https://avalon.law.yale.edu/18th_century/washing.asp). 43 Rick Hampson, 70 Years Later: How World War II Changed America, USA TODAY (July 18, 2015), https://www.usatoday.com/story/news/nation/2015/07/18/70-years-later- how-world-war-ii-changed-america/30334203/. 44 See, e.g., NAT’L SEC. COUNCIL REP., NSC 68, UNITED STATES OBJECTIVES AND PROGRAMS FOR NATIONAL SECURITY(1950). 45 See Michael Mandelbaum, Ending of the Coldwar, FOREIGN AFFS. (Spring 1989), https://www.foreignaffairs.com/articles/russia-fsu/1989-03-01/ending-cold-war (lasted visited . 20, 2021). 46 See Vietnam War, HISTORY, https://www.history.com/topics/vietnam-war/vietnam- war-history (last visited Feb. 20, 2021).

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of military personnel, all with the purpose of deterring the Soviet Union from launching a nuclear attack against the United States.47

America won the Cold War when the Soviet Union collapsed in December 1991.48 However, the former Soviet Union, now the Russian Republic, retained a large nuclear arsenal that still required an ongoing significant reciprocal U.S. capability. Moreover, in a “whack a mole” manner, the Soviet threat was soon replaced by others: Saddam Hussein’s Iraq and international terrorists as exemplified by 9/11.49 These threats became the subject of U.S. military action: President George H.W. Bush’s U.S.-led coalition to drive Saddam from Kuwait, the 2001 Afghanistan War, and the 2003 invasion of Iraq.50

These more-or-less continuous wars have meant that, since World War II, U.S. Commanders in Chief have had a large and powerful military force to command, including deploying the force around the world in times of crisis or, as in the case of George W. Bush, as a precursor to the invasion of Iraq. As the framers recognized, the conduct of war requires decisiveness, unified command, and quick action—all attributes of executive authority.51 As such, wars inherently increase the Executive’s power. Moreover, the presidential power to make constitutionally legitimate decisions during peacetime about the disposition and potential use of the military force reduces the options available to Congress in exercising its war-powers.

As the founders’ feared, the existence of a standing army is a mechanism that promotes the power of the executive. The past presidents’ flexibility in the use of the standing military force has been strengthened by

47 See Arms Race, HISTORY (Dec. 2, 2019), https://www.history.com/topics/coldwar/arms-race. 48 Adam Janos, Was the Soviet Union’s Collapse Inevitable?, HISTORY (updated Feb. 22, 2019), https://www.history.com/news/why-did-soviet-union-fall. 49 Saddam Hussein’s Support for International Terrorism, WHITE HOUSE, https://georgewbush-whitehouse.archives.gov/infocus/iraq/decade/sect5.html (last visited Feb 20, 2021). 50 Alan Taylor, Operation Desert Storm: 25 Years Since the First Gulf War, THE ATLANTIC (Jan. 14, 2016), https://www.theatlantic.com/photo/2016/01/operation-desert- storm-25-years-since-the-first-gulf-war/424191/; The U.S. War in Afghanistan 1999- 2020, COUNCIL ON FOREIGN RELATIONS, https://www.cfr.org/timeline/us-war- afghanistan (last visited Feb. 20, 2021); The Iraq War, COUNCIL OF FOREIGN RELATIONS, https://www.cfr.org/timeline/iraq-war (last visited Feb. 2021). 51 See, e.g., THE FEDERALIST NO. 74 (Alexander Hamilton).

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the advent of the all-volunteer force following the Vietnam War.52 This has insulated the large majority of Americans from the personal cost of the foreign wars we have fought in Iraq and Afghanistan, which now holds the record for the longest war in American history.53 That makes it easier for presidents to decide, as George W. Bush did, to take on terrorism in the Middle East, so that the United States doesn’t have to fight the enemy at home. It also makes it easier for congressional politicians to defer to the President take the lead, because most of their constituents’ children have no personal stake in the wars presidents decide to fight.

The Modern Presidency’s Aggressive Theory of Its War Powers

Modern presidents have espoused the view, as described in the words of Supreme Court Justice Robert Jackson written in 1952, that the Commander in Chief can “do anything, anywhere, that can be done with an army or navy.”54 However the text of the Constitution does not support the idea that the President has the unilateral power to commit the nation to war. The War Powers clause gives Congress the power to declare war, and the associated powers to raise and support armies, provide and maintain a navy, make rules for the regulation of the armed forces, and to provide for the calling forth of the militia.55 Nowhere does the Constitution prescribe that the President, as Commander in Chief, has the unilateral power to decide to take the country to war.

The record of the Constitutional Convention demonstrates that the framers did not want to place the determination of war in the president’s bailiwick.56 With the exception of a sudden attack, the record is clear that the framers intended to place the decision to go to war in the hands of

52 Bernard D. Rostker, The Evolution of the All-Volunteer Military Force, RAND CORPORATION (July 17, 2006), https://www.rand.org/pubs/research_briefs/RB9195.html. 53 America’s Longest War: A Visual History of 18 Years in Afghanistan, WALL ST. J. (Feb. 29, 2020), https://www.wsj.com/articles/americas-longest-war-a-visual-history-of- 18-years-in-afghanistan-11583010024. 54 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 641-42 (1952) (Jackson, J., concurring). 55 U.S. CONST. art. I, § 8. 56 See, e.g., Patrick Henry, Remarks in the Virginia Convention (June 5, 1788), reprinted in The Documentary History of the Ratification of the Constitution Digital Edition, (John P. Kamski et. al., eds. 2009) available at https://csac.history.wisc.edu/wp- content/uploads/sites/281/2017/07/Patrick_Henry_in_the_Virginia_Convention.pdf.

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Congress. This view was endorsed and further explained in the ratification debates.57 It was applied by George Washington and the founding-generation Congress in the conduct of the Northwest Indian War.58 It was consistently followed in the five major wars fought by the United States from the founding through World War II.59

Secretary of State Dean Acheson tasked the State Department to prepare a memorandum with the supposed rationale for Truman’s unilateral decision to go to War on the Korean peninsula.60 However, the memorandum did not include a reasoned analysis of the Constitution’s language or the Convention debates. Instead, it engaged in a selected recitation of history.61 Overlooking the well-established record of congressional declarations of war, the State Department’s argument was based on what was characterized as a long history of episodes in which Presidents committed troops to military action without congressional authorization. While the Supreme Court has stated that long-settled and established practice between the two political branches may have great weight in constitutional interpretation,62 the admittedly numerous list of small-scale military encounters to protect American property and small numbers of American citizens cannot suffice to write into the Constitution a power to commit the nation to a sustained military conflict in which thousands of American military personnel are exposed to death and injury, and billions of dollars are likely to be spent.

By 1973, when President Richard Nixon vetoed the War Powers Resolution, Truman’s unconstitutional decision for war in Korea had become part of the claimed “long-standing” practice that the presidents

57 See, e.g., GENERAL ASSEMBLY OF VA., VA. FORM OF RATIFICATION reprinted in CENTER FOR THE STUDY OF THE AMERICAN CONSTITUTION, https://csac.history.wisc.edu/wp- content/uploads/sites/281/2017/07/35_Virginia_Ratification_Debates.pdf (last visited Feb. 20, 2021). 58 Adam Mendel, The First AUMF: The Northwest Indian War 1790-1795, and the War on Terror, J. OF CONST. L. 1309, 1324 (2016). 59 See Declarations of War by Congress supra, note 21. 60 See ACHESON, supra note 28, at 415. 61 See MEMORANDUM, supra note 29. 62 Okanoganv. United States, 279 U.S. 655, 689 (1929).

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themselves have created.63 However, they could not have done it without the acquiescence of Congress.

Political Parties and Congressional Acquiescence

Congress’s failure to protect the war powers granted it by the Constitution has resulted largely from the central role played by political parties in the U.S. governmental system and the dual role of the President as chief executive and party leader. The founders were no strangers to what they called “factions.”64 Indeed, the ratification debates were conducted by two rough factions, the Federalists, who favored ratification of the Constitution, and the Anti-Federalists, who opposed it. However, the concept of a political party, in the sense of a group of people with a shared set of values and goals that is in continual existence and coordinates efforts to achieve political power through the electoral process was still in its infancy. It wasn’t until Martin Van Buren’s presidency in the 1830s that political parties as we know them today began developing.65 By the time of the Civil War, competing parties became the vehicles that carry our politicians into office. Party politics drives, and in many instances, blocks the formation and implementation of the laws of the nation.

Today, Democrats and Republicans vie for power at the ballot box in order to convert that power into policies when they get the chance to govern. This phenomenon is exacerbated by the nearly perpetual nature of the election cycles. There is hardly a break between the last election campaign and the next. For example, the Democrats kicked off the 2020 presidential election campaign when they held their first primary debates.66 Not to be out-done, then President Donald Trump launched his re-election campaign at about the same time, nearly a year and a half before the November, 2020 election-day.67 To make matters worse, the bitter political

63 Dave Roos, US Presidents and Congress Have Long Clashed Over War Powers, HISTORY (updated Jan. 16, 2020), https://www.history.com/news/us-presidents-war- powers-congress. 64 Sarah Pruitt, The Founding Fathers Feared Political Factions Would Tear the Nation Apart, HISTORY (updated March 7, 2019), https://www.history.com/news/founding- fathers-political-parties-opinion. 65 SCOTT S. BARKER, THE IMPEACHMENT QUAGMIRE 4-5 (2019). 66 David Catanese, A Guide to the 2020 Democratic Presidential Primary Debates, U.S. NEWS, (June 12, 2019), https://www.usnews.com/news/politics/articles/guide-to-the- 2020-democratic-presidential-primary-debates. 67 Donald Trump Announces His 2020 Candidacy at a Political Rally in Orlando, YOUTUBE (June 18, 2019), https://www.youtube.com/watch?v=ndOFsNQmtow.

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warfare that characterized the campaign extended beyond the election, as President Trump and his supporters continued their ill-begotten attempts to undo the choice of the people at the ballot box.68

The founders also did not foresee the role of the President as the leader of his political party. As such, the President occupies a unique and powerful position in our political system not anticipated by those who created the Constitution. The members of his party in Congress have a political loyalty to their party and its leader that now abandons institutional loyalty in favor of fidelity to a political party.69 The remarkable hyper- partisan lineups in President Trump’s two impeachments in the House of Representatives and his two acquittals in the Senate impeachment trials are striking illustrations of the demise of institutional loyalty in the Congress and a strong reluctance to oppose a President, or in Donald Trump’s case even a former President.

Party loyalty also hamstrings Congress’s ability to exercise the power of the purse to rein in a President after a war has begun. Theoretically, Congress can vote not to fund continued deployment of troops in a theater of military operations.70 However, it is a heavy lift for Congress to withdraw support for troops in the field. Moreover, in the hands of an aggressive Commander in Chief dealing with a divided Congress, the veto power 71 becomes an effective weapon against such a congressional gambit. For example, in 2007, after the Iraq War had gone bad, President George W. Bush vetoed a supplemental appropriations bill that included a provision that would have required the Secretary of Defense

68 Jacob Shamsian & Sonan Sheth, Trump and Republican Officials Have Won Zero Out of at least 42 Lawsuits They’ve Filed Since Election Day, INSIDER (Jan 5, 2021 7:71 AM), https://www.businessinsider.com/trump-campaign-lawsuits-election-results-2020- 11. 69 See J. Vincent Buck, Presidential Coattails and Congressional Loyalty, 16 MIDWEST J. OF POL. SCI. 460, 463 (1972). 70 JENNIFER K. ELSEA, MICHAEL J. GARCIA, THOMAS J. NICOLA, CONG. RSCH. SERV., CONGRESSIONAL AUTHORITY TO LIMIT MILITARY OPERATIONS (2013). 71 U.S. CONST., art. I, § 7, cl. 2.(“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States. If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If, after such Reconsideration two thirds of that house shall agree, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.”)

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to begin redeployment of American troops from Iraq by a date certain.72 Congress could not get the two-thirds super-majority of votes needed to override the veto and passed the appropriation without the redeployment condition.73 This means that a president can continue a war, so long as the president can muster a third-plus-one vote count in either House of Congress to support them, which is all they would need to sustain a veto of legislation to block them.

What Should Be Done?

The hijacking of Congress’s war powers by the presidency has been a key motivating force in the major shift in power from Congress to the President in modern America. This aims an arrow at the heart of the Constitution. Two fundamental precepts were at the core of republican government as perceived by the founders and were central to the development of the Constitution. First, concentrated power inevitably leads to tyranny. Second, the way to prevent concentrated power is to divide the government and provide checks and balances among the divisions. Writing in 1957, Justice Black put it succinctly: “ours is a government of divided authority, on the assumption that in division there is not only strength but freedom from tyranny.”74

Recognizing that “men are not angels,” James Madison thought the success of divided government was achieved by “ambition must be made to counteract ambition ” especially between the two political branches of the government.75 As Madison recognized, “parchment barriers” could not in themselves retain the balance of power among the branches of government.76 To maintain that balance requires a determination, an “ambition,” by each branch, as an institution, to control the power of the others.77

Congress should reassert itself and restore the proper balance to its war-powers relationship with the President. As Justice Robert Jackson said in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the 1952 separation of powers case that blocked President Truman from using his

72 President George H.W. Bush, Remarks on Veto of Iraq War Supplemental Appropriation Bill (May 1, 2007) (transcript on available at https//georgewbush- whitehouse.archives.gov/news/releases/2005/05/text/20070502.html). 73 H. R. 1591, 110th Cong. (2007). 74 Reid v. Covert, 354 U.S. 1, 40 (1957). 75 THE FEDERALIST NO. 51 (James Madison). 76 THE FEDERALIST NO. 48 (James Madison). 77 Madison, supra note 75.

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Commander in Chief powers to seize the steel mills during a labor strike to keep war supplies made from steel flowing to the troops fighting the Korean War, “[w]e may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress can prevent power from slipping through its fingers.”78

To retrieve the power Congress has let slip through its fingers it should prepare and execute a legislative agenda designed to clear out the statutory deadwood that remains in the U.S. Code, and replace it with new legislation that properly re-defines the war-powers relationship between the two political branches. First, the War Powers Resolution should be repealed and replaced. Second, the 2001 Authorization for the Use of Military Force (2001 AUMF)79 and the Authorization for Use of Military Force Against Iraq Resolution of 2002 (2002 Iraq AUMF)80 should be repealed. Third, Congress should enact a measure that requires it to authorize the first use of nuclear weapons. To be successful, this legislative enterprise will require members of Congress to lay aside their partisan perspectives and take action as an institution.

Repeal and Replace the War Powers Resolution

As discussed above, the 1973 War Powers Resolution was enacted to reassert Congress’s prerogative to declare war, while giving the President the flexibility to respond to sudden attacks or other emergencies.81 After the nearly five decades since enactment over President Nixon’s veto, it is time to recognize that the War Powers Resolution has failed to fulfill the hopes of its congressional sponsors. It has had no real substantive impact on the war-powers relationship between Congress and the President.

To begin with, there are serious questions about the War Powers Resolution’s constitutional validity. On the one hand, some constitutional scholars believe that, by giving the President the power unilaterally to

78 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952). 79 Authorization for the Use of Military Force of 2001, Pub. L. No. 107-40 75 Stat. 224 (joint resolution of Congress authorizing the use of the armed forces against those responsible for the September 11, 2001 attacks). 80 Authorization for the Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498 (joint resolution of congress authorizing use of military force against Iraq). 81 See infra text accompanying notes 32-38.

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initiate military action and wage combat for sixty to ninety days,82 the Resolution unconstitutionally delegates Congress’s power to declare war to the President. On the other hand, the provisions that cut off the President’s ability to continue hostilities begun by him without a congressional declaration of war are constitutionally suspect as a violation of the law- making process called for in Article I, section 7: “presentment” of bills to the President for signature or veto.83 For example, a key War Powers Resolution provision states that forces committed to hostilities without congressional authorization “shall be removed if the Congress so directs by concurrent resolution [which does not require the President’s signature].”84 Thus, Congress could pass a measure that would purport to have the force of law, without having given the President an opportunity to participate in the process. In a 1983 Supreme Court ruling, INS v. Chadha,85 a similar provision in the Immigration and Nationality Act was held unconstitutional.

Moreover, even assuming the statute could pass constitutional muster (and it is unlikely that the issue would ever be decided by the courts), Congress has never successfully invoked the War Powers Resolution to stop military action initiated by the President without congressional authorization. Beginning with President Nixon’s veto, the presidency has taken the position that the War Powers Resolution is an unconstitutional restriction on the Commander in Chief’s war-making powers. Accordingly, Presidents have given it short shrift.

For example, the presidency’s response to the resolution’s call for consultation with Congress by the President regarding war measures “in every possible instance”86 has ranged from perfunctory to non-existent. While Presidents have issued scores of reports to Congress on their military activities since passage of the War Powers Resolution, in all but one inconsequential circumstance, they have been careful not to issue their

82 War Powers Act of 1973, Pub. L. No. 93-148, § 5(a-b), 87 Stat. 555 (codified as 50 U.S.C. § 1544(a-b) (overriding then-President Nixon’s veto); See War Powers Act, HISTORY, (updated June 10, 2019), https://www.history.com/topics/vietnam-war/war- powers-act. 83 U.S. CONST. art. I, § 7. 84 War Powers Act of 1973, Pub. L. No. 93-148, § 5(c), 87 Stat. 555, (codified as §1544(c)). 85 Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 941 (1983) (holding that the provision of the Immigration and Nationality Act that granted a single house of congress the power to invalidate and executive branch decision was unconstitutional because it violated the Separation of Powers doctrine). 86 WAR POWERS ACT OF 1973, supra, note 84 at § 3 (codified as 50 U.S.C. § 1542).

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reports under the reporting section of the Resolution.87 This well-established presidential gambit avoids triggering the requirement that, absent congressional action, the President must cease the military operation that is the subject of an official report within sixty to ninety days.88 Thus, the War Powers Resolution has failed to place any meaningful restrictions on the President’s asserted unilateral war-making power.

Finally, since passage of the War Powers Resolution, the United States has fought three major wars, two in the Middle East (Kuwait 1991 and Iraq 2003) and one in Afghanistan (2001). In all three, the Presidents involved, George H.W. Bush (Kuwait) and George W. Bush (Afghanistan and Iraq) sought and received, congressional authorizations, separate and apart from the War Powers Resolution, that gave them the discretion to use the military force they deemed necessary in the situations they faced.89 Neither President believed he needed the congressional authorizations, but father and son both perceived the political wisdom of doing so.

Given its failure, the War Powers Resolution should be repealed and replaced with a simpler statute. Congress should incorporate the proper constitutional war-powers relationship between Congress and the President, along the lines of this provision in the existing War Powers Resolution:

“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 armed forces.”90

This approach eliminates the sixty-to-ninety-day window in the War Powers Resolution within which a President may unilaterally initiate and wage combat. It makes clear that, apart from a national emergency created

87 Id. at § 4 (codified as 50 U.S.C. § 1543). 88Id. at§ 5(b) (codified as 50 U.S.C. § 1544(b)). 89 See Joint Resolution to Authorize Use of United States Armed Forces Pursuant to United Nations Security Council Resolution 678, Pub. L. No. 102-1, 105 Stat. 3 (1991); Authorization for the Use of Military Force of 2001, Pub. L. No. 107-40, 115 Stat. 224; Authorization for the Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243,116 Stat. 1498. 90 WAR POWERS ACT, supra note 84, at § 2(b) (codified as 50 U.S.C. § 1541(c)).

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by an attack on the United States or its armed forces, the President is obligated to seek either a declaration of war or some other specific statutory authorization from Congress. Such a scheme will work. It was successful from 1789 to 1950, in the form of congressional declarations of war. In the form of congressional authorizations, it has been used three times by two Commanders in Chief in the past two decades, including the exigent circumstances in the immediate aftermath of the 9/11 terrorist attacks on the American homeland. The 2001 AUMF was passed by Congress and signed by President George W. Bush within two-week of the attacks. Pursuant to that congressional authority, President Bush sent troops to Afghanistan in October to ferret out the Taliban. By any measure, this was fast action by both Congress and the Commander in Chief.

Drawing on corresponding provisions in the War Powers Resolution, replacement legislation should also contain reporting requirements related to situations in which the President has responded, before he can obtain congressional authorization, to a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.91 It should also include procedures for priority treatment of congressional declarations of war and other authorizations relating to war, as well as bills relating to military actions taken by the President in response to national emergencies created by attacks on the United States, its territories or possessions, or its armed forces.92

Repeal the 2001 AUMF

This congressional authorization has been in effect for nearly twenty years. Its purpose was to authorize the President to take military action in retaliation for the 9/11 attacks. It has accomplished that purpose. Leaving this authorization in place allows presidents to concoct attenuated connections between those who mounted the 9/11 attacks and any terrorist organization they may deem worthy of attack now or in the future, instead of asking Congress for a renewed authorization that addresses the new threats in specific and concrete terms.

Repeal the 2002 Iraq AUMF

This congressional authorization is also obsolete. It was enacted eighteen years ago to authorize an attack on Iraq to rid the United States of

91 Id. at § 4(a) (codified as 50 U.S.C. § 1543(a)). 92 Id. at §§ 7-8 (codified as 50 U.S.C. §§ 1544-45).

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a threat that President George W. Bush has admitted since leaving office never existed.93 Whatever U.S. military presence may be necessary to assist the Iraqis in dealing with terrorist threats against them should be addressed by Congress in the military and foreign aid appropriations process. Although this seems unlikely, should a President determine in the future that offensive military operations by U.S. forces in Iraq are necessary to protect American interests, he or she can seek the necessary authority from Congress.

Legislation Requiring Congressional Authority for the First Use of Nuclear Weapons

Contemplating any use of nuclear weapons as they have developed since the primitive atomic bomb, dubbed “Little Boy,” was dropped on Hiroshima in August 1945, is, in President Obama’s words, a form of insanity.94 Nonetheless, these weapons exist. As long as there is a possibility that they might be used again, there is an obligation to the nation and the world to reduce the chance that a mistake in judgment or, worse yet, an irrational act by the Commander in Chief could yield a decision to use weapons with the power to destroy civilization as we know it. It is well to remember that the United States is the only country ever to have used a nuclear weapon against another nation.95 That decision was made by a single person. While a debate began immediately about the wisdom of that decision, no one seriously questioned President Truman’s authority to have made it.96 War had been declared by Congress against the Japanese Empire. The use of the atomic bomb was implicitly viewed as a military decision during a war by a duly authorized Commander in Chief.

93 GEORGE W. BUSH, DECISION POINTS, 262 (2010), (stating “No one was more shocked or angry than I was when we didn’t find the weapons [of mass destruction]. I had a sickening feeling every time I thought about it. I still do.”); See Powell: Obama Failed to Focus on What’s “Most Important, CNN (Nov. 16, 2010), http://www.cnn.com/2010/US/11/16/colin.powell/index.html. 94 Little Boy and Fat Man, ATOMIC HERITAGE FOUNDATION (July 23, 2014), https://www.atomicheritage.org/history/little-boy-and-fat-man; 10 Years After Obama’s Nuclear-Free Vision, the US and Russia Head in the Opposite Direct, BROOKINGS (April 4, 2019), https://www.brookings.edu/blog/order-from-chaos/2019/04/04/10-years-after- obamas-nuclear-free-vision-the-us-and-russia-head-in-the-opposite-direction/. 95 Nuclear Weapons: Which Countries Have Them and How Many Are There?, BBC (Jan. 14, 2020), https://www.bbc.com/news/newsbeat-51091897. 96 See President Truman Refuses to Rule Out Nuclear Weapons, HISTORY, https://www.history.com/this-day-in-history/truman-refuses-to-rule-out-atomic-weapons (last visited Feb. 21, 2021).

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The stakes in nuclear war are much higher today than they were in 1945.97 Yet, as matters now stand, presidents claim constitutional authority sufficiently broad to allow them alone to decide where and when the United States will use nuclear weapons. Horrific as it would be, a decision on the retaliatory use of nuclear weapons following a nuclear attack on the United States is one that the Constitution places in the President’s bailiwick, as part of the framers’ recognition that a president might have to act without congressional approval in response to a sudden attack.

The offensive use of nuclear weapons is a fundamentally different issue. Whereas speed and decisiveness are necessary when responding to a nuclear attack, the offensive use of such awesomely destructive weapons demands deliberate decision-making informed by reasoned debate. In the words of the no first use bill introduced in Congress in 2017:

“nuclear weapons are uniquely powerful weapons, possessing the capability to instantly kill millions of people, create long-term health and environmental consequences throughout the world, directly undermine global peace, and put the United States at existential risk of retaliatory nuclear strikes.”98

Accordingly, the proposed legislation would have required Congress to authorize the first use of nuclear weapons by the United States:

“Notwithstanding any other provision of law, the President may not use the Armed Forces of the United States to conduct a first-se nuclear strike unless such strike is conducted pursuant to a declaration of war by Congress that expressly authorizes such strike.”99

Congress did not pass the bill in 2017. It should do so.

97 See GEORGE L. BUTLER UNCOMMON CAUSE, VOLUME II 116-22 (describing the destructive power of modern thermo-nuclear weapons); 2016); See also Department of Defense, 2018 Nuclear Posture Review Final (2018). 98 H.R. Res. 669, 115th Cong. (2017). 99 Id.

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The Stage Is Set for Presidential Cooperation

The presidency should disavow its aggressive, unconstitutional assertion that the President has the unilateral power to commit U.S. forces to major offensive military action. Such a disavowal is not as far-fetched as it might seem at first blush. As noted above, both father and son Presidents Bush sought and received congressional authority to initiate the three largest American military confrontations since the Vietnam War. While they insisted in the abstract that they did not need congressional authorization to go to war, that insistence turned out to be more theoretical than real. They recognized that, given the likely cost in lives and treasure of what they were proposing, it was politically important to get the backing of Congress.

President Obama took significant steps toward restoring Congress to its proper place in deciding questions of war and peace.100 Perhaps reflecting what he had imbibed as a constitutional law professor, presidential candidate Obama asserted that the President could order a military attack only to stop “an actual or imminent threat to the nation.”101 As Commander in Chief, he altered that view somewhat. In March 2011, going beyond his campaign statement, Obama unilaterally ordered limited-duration air strikes against Libya.102 He was advised by his Department of Justice Office of Legal Counsel that he had the constitutional authority to order those limited military measures.103 At the same time, Obama’s legal advisors recognized that the conduct of a war required a declaration by Congress. Determining what constituted a war was a fact-intensive inquiry. It would be characterized by a “prolonged and substantial military engagement, typically involving exposure of U.S. personnel to significant risk over a substantial period.”104 Under that definition, all three of the wars waged by the Bushes required congressional authorization, which was sought and received.

100 CAROLINE D. KRASS, OFF. OF LEGAL COUNS., AUTHORITY TO USE MILITARY FORCE IN LIBYA (2011). 101 Peter Baker & Jonathan Weismen, Obama Seeks Approval by Congress for Strike in Syria, N.Y. TIMES (Aug. 31, 2013), https://www.nytimes.com/2013/09/01/world/middleeast/syria.html. 102 Andrew Glass, Obama Approves Strikes Against Libya, POLITICO (Mar. 19, 2019), https://www.politico.com/story/2019/03/19/barack-obama-libya-airstrikes-1224550. 103 KRASS, supra note 100. 104 STEVEN A. ENGEL, OFF. OF LEGAL COUNS. AIR STRIKES AGAINST SYRIAN CHEMICAL- WEAPONS FACILITIES (2018).

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Two years later when President Bashar al-Assad of Syria used chemical weapons against civilians in the suburbs of Damascus, the world was outraged.105 President Obama first appeared inclined to authorize, on his own, a retaliatory military strike against Assad, but then decided to seek congressional authorization. As he told the press in the Rose Garden with U.S. Navy destroyers armed with Tomahawk missiles standing by in the Mediterranean Sea, “I’m prepared to give [an attack], order. But having made my decision as Commander in Chief based on what I am convinced is our national security interest, I am also mindful that I am the President of the world’s oldest constitutional democracy.”106

He went to Congress, which refused to authorize the measures.107 President Obama honored that result. No U.S. military retaliation occurred. What this says about Obama’s view of the Command in Chief power is unclear. Presumably, the retaliation would have been quick and targeted, with corresponding limited and short-duration threat to U.S. military personnel. In other words, President Obama was not proposing a war. It seemed similar to the air strikes against Libya two years before, which he had ordered without going to Congress. But he knew that, after ten years and a failed war in Iraq, the American people were wary of U.S. military actions in the Middle East. He wanted Congress to share in the decision.

The Trump administration did not take an official position on presidential war powers. As of this writing, it is too early to ascertain what position the Biden administration might take on these issues. President Obama’s implicit disavowal of President George W. Bush’s aggressive, unconstitutional view of presidential war powers provides an opening for President Biden, who served more than thirty-five years in the Senate and eight years as Vice President in the Obama administration. Now may be a

105 More than 300 Chemical Attacks Launched During Syrian Civil War, Study Finds, NPR (Feb. 19, 2019), https://www.npr.org/2019/02/17/695545252/more-than-300- chemical-attacks-launched-during-syrian-civil-war-study- says#:~:text=The%20report's%20authors%20attributed%202,mustard%20gas%20on% 20Syrian%20civilians. 106 Press Release, The White House Off. of the Press Sec’y, Statement of the President on Syria (Aug. 31, 2013) available at: https://obamawhitehouse.archives.gov/the-press- office/2013/08/31/statement-president-syria. 107 Jeremy Herb, How Trump’s Syrian Airstrike is Different from—and Similar to— Obama’s, CNN (updated Apr. 7, 2017), https://www.cnn.com/2017/04/07/politics/obama-syria-airstrikes-trump/index.html.

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propitious time to enact long overdue legislation to rebalance the war powers relationship between Congress and the President.