Biden's Bombing Campaign Is a Trumpian Assertion of Presidential Power
By Jon Schwarz, The Intercept
29 June 21
Trump's berserk recklessness opened a window to rein in presidential war
powers. Biden's actions show that window is now closed.
The Biden administration's legal justification for the airstrikes it carried
out Monday in Syria and Iraq was simple and straightforward: According to
Pentagon press secretary John Kirby, "the President took this action
pursuant to his Article II authority to protect U.S. personnel in Iraq."
This is what is sometimes known as a "naked Article II" assertion of
presidential power. That is, the executive branch is claiming the right to
use armed force without reference to any authorization from Congress. Kirby
made the same case in almost exactly the same words in February when Joe
Biden bombed northeastern Syria. "The President took this action pursuant to
his Article II authority to defend U.S. personnel," he said at the time.
This may seem confusing, given that Article I, Section 8 of the U.S.
Constitution declares that "the Congress shall have Power . To declare War."
The rationale for this clause can be found in a famous 1793 polemic by James
Madison, considered the father of the Constitution, which had been ratified
just four years earlier. Madison argued the power to declare war must be
"fully and exclusively vested" in Congress because history showed that "the
executive is the department of power most distinguished by its propensity to
war: hence it is the practice of all states, in proportion as they are free,
to disarm this propensity of its influence."
Madison therefore called for a "rigid adherence to the simple, the received
and the fundamental doctrine of the constitution, that the power to declare
war including the power of judging of the causes of war is fully and
exclusively vested in the legislature: that the executive has no right, in
any case to decide the question."
This perspective constrained the executive branch to some limited extent
through the end of World War II. Then, in 1950, President Harry Truman
ordered hundreds of thousands of U.S. troops to Korea with no congressional
authorization. His State Department instead issued a memo explaining why
"the President's authority to send the Armed Forces outside the country is
not dependent on Congressional authority." Why? Because "the President's
control over the Armed Forces of the United States is based on article 2,
section 2 of the Constitution." Article II, Section 2 states, "The President
shall be Commander in Chief of the Army and Navy of the United States."
The 1964 Gulf of Tonkin Resolution, passed under false pretenses, did
provide some congressional authorization for the subsequent massive
expansion of the Vietnam War, then already in progress. However, there was
never any congressional support at all for America's secret military
campaign against Vietnam's next door neighbor, Cambodia. The U.S. dropped
about half a million tons of bombs on the poor peasant nation, about the
same amount we used in the entire Pacific theater during World War II. The
Nixon administration explained that this was fine and perfectly legal
because the Korean War "stands as a precedent for executive action in
committing United States armed forces to extensive hostilities without any
formal declaration of war by Congress." The U.S. had "in no sense gone to
'war' with Cambodia," and Nixon didn't need any authorization from Congress,
given "the constitutional designation of the President as Commander in
Chief."
This perspective on presidential power has since become doctrine for
Republicans and many Democrats. Congress authorized the Gulf War in 1991,
but then-Secretary of Defense Dick Cheney felt this was unnecessary. "We had
the Truman precedent from the Korean crisis of 1950," Cheney said. "From a
constitutional standpoint, we had all the authority we needed."
The Justice Department provided Cheney and the rest of the George W. Bush
administration with a legal justification for pure presidential power soon
after the 9/11 attacks. Article II, it said, establishes that "the Founders
entrusted the President with the primary responsibility, and therefore the
power, to use military force in situations of emergency." So the president
did not need congressional authorization to attack "terrorist organizations
or the States that harbor or support them, whether or not they can be linked
to the specific terrorist incidents of September 11."
That said, presidents have generally preferred to do a sort of legal
two-step on this issue. They like to say they are acting "in accordance
with" some kind of congressional authorization, even as they say Article II
means they don't need it. 2001's Authorization for Use of Military Force,
passed with a sole "no" vote after the 9/11 terrorist attacks, has proven
particularly useful in this regard. According to a 2018 Congressional
Research Service report, the 2001 AUMF had been cited by presidents 41
times: 18 by the Bush administration, 21 by Obama, and twice by Trump.
But even the 2001 AUMF couldn't be stretched to cover the U.S. participation
in the 2011 overthrow of Libya's government. The Obama administration's
legal rationale for that was simply Article II. Then Trump bombed Syria on
several occasions, explaining in a 22-page 2018 memo that "Article II
provides the President with the authority to direct U.S. military forces in
engagements necessary to advance American national interests abroad."
After Washington officials witnessed Trump's extraordinary recklessness -
which during his first year in office could have genuinely led to nuclear
war with North Korea, just on his sole decree - there was a brief window
when it appeared the next administration might have limits placed on its war
powers, either by itself or by Congress or both. But with Biden's action
since taking office, that window appears to have closed. It's not
surprising, but America's continuing retreat from what Madison called "the
practice of all states, in proportion as they are free," is nonetheless
extremely ominous.