Is it politically possible for Congress to reassert its constitutional war powers? What would it take?
Let’s quickly analyze why congressional war powers have become so degraded. The vast expansion of American international commitments following the Second World War and the beginning of the Cold War necessarily tended to encourage delegation of war powers to the executive, which could then act quickly and decisively in response to perceived Communist threats; the doctrine of containment is best served by a dynamic, reactive executive rather than a deliberative legislature. The increasing professionalization of the military—that is, the transition from a conscription model to the all-volunteer force, a process that intensified after the Vietnam War—was also necessitated by American international commitments. It had the side-effect of making any individual use of military force much less politically salient. The mass of citizens didn’t have to express their concerns about getting dragged off to fight through their elected representatives; it became something that did not affect them directly very much one way or the other.
This left Congress with little incentive to claw back its constitutional prerogatives, producing an apparent exception to Madison’s theory of interdepartmental competition for power. Better to leave war, which is risky and does not generally involve bringing home bacon to the folks in the district, to the executive, which has its own reasons for preferring to hold onto war powers.
A basic conservative contention is that this has not been a very good arrangement—it has resulted in a lot of rather stupid military adventures with the concomitant expense—and that the quasi-imperial order supported by executive war powers has engendered a variety of undesirable distortions in the American body politic. The Framers had good reason to entrust war powers to the legislature. So, again, what would it take for Congress to exert itself?
The fundamental problem is one of incentives—there is no political incentive for Congress to pick up its war powers—so the obvious solution is to change them. It is unlikely at this late date that there will be much impetus to draw down or disband the (illegal, unconstitutional) standing army, thus returning war to the constituent management column for the politicos. Nor do intensifying fiscal problems seem to be moving the needle much. But, in the Trump era, Congress has been fairly enthusiastic about beating the executive over the head with its oversight powers, most conspicuously with the admittedly somewhat hysterical January 6 joint committee. In the hyperpolarization era, embarrassing one’s enemies is a political desideratum. So Tess Bridgeman and Ryan Goodman’s call for an Iran War commission in Just Security piques one’s interest.
The authors contend that a commission on the model of those formed in response to the 2008 financial crisis and the 2021 withdrawal from Afghanistan could, with a minimum of fuss, expose details about the origins and conduct of a war that has become broadly unpopular and has been waged with barely a nod toward Congress. Such a commission holds out the political goodies that have been lacking in previous calls for a return to constitutional standards: Democrats (who may well be in a position to call the shots on Capitol Hill in a few months) will be able to clobber their pet horribles in the administration, and Republicans with reservations about the war will be able to put a little retrospective distance between themselves and their conspicuously uncourageous stand at its outbreak.
Such an endeavor isn’t a silver bullet. When the commission inevitably concludes that returning war powers to Congress will help prevent such disasters in the future, Congress will in fact have to follow through. But it at least provides a politically attractive way to reopen the question, and who knows whither the momentum would lead? One can imagine, possibly for the first time in American political history, a return to constitutional government becoming a winner on the stump and at the ballot box.
Read the full article here
