On Lawfare Keith Whittington discusses the insignificance of an Article of the United States Constitution:
Nonetheless, faithful and conscientious constitutional actors should do more than pay mere lip service to the text. Congress is abdicating its constitutional responsibilities to determine whether the United States should make war on other nations when it makes no effort to take advantage of the ample time available to it to deliberate on how the United States should respond to the use of chemical weapons by a rogue regime and when it makes no effort to develop a collective response to presidential threats to use military force against foreign governments with which the United States is not already at war. The executive branch is indicating the irrelevance of Congress to the warmaking process when it announces that the president’s Article II authority should be understood to include the power to initiate military force against foreign nations whenever he deems American national interests to be at stake. …
Recent uses of military force by American presidents are increasingly indicating that the exclusive congressional authority to declare war is moribund or perhaps already defunct. How Congress chooses to indicate its assent to the use of military force is insignificant. Whether Congress and the president believe that congressional authorization is necessary to the use of military force is of the utmost significance. If neither branch of government has any interest in adhering to the constitutional scheme for launching military offenses, then it is reasonable to wonder whether a provision of the constitutional text has been effectively written out of our constitutional practice and what the nature of the replacement constitutional order might be. Such a crisis of constitutional fidelity is all the more remarkable if it passes with little public notice or comment and is cemented by the actions of a president widely distrusted by both the mass public and political elites. Even the extraordinarily weak presidency of Donald Trump can lay claim to an apparent constitutional inheritance that allows presidents to initiate wars at will. If the congressional war power is not dead, the actions of Congress and the president suggest it might be on life support. Congress should not be surprised if this president—and future presidents—conclude that the national legislature is irrelevant to the decision of whether the United States should go to war, and act accordingly.
And it’s extremely distressing to think of an Administration which has war-making power and de-facto authorization. Certainly the right-wing was distressed at President Obama’s Libyan missile strikes, and with some justification. I was a little distressed at the time, and I voted for Obama.
Similarly, it’s distressing that Trump failed to directly request Congress authorize those strikes. That Congress has not reprimanded him – or worse – is an encouragement to both him and his successors to further use the Armed Forces to accomplish goals of dubious national significance, which is just another way to say whim and political distraction. The refusal to enforce Congressional perogatives leaves us with an unbalanced government that will engender the further disdain of extremists on all sides of the political spectrum – and not without reason.
All that said, it’s not surprising that this particular Congress, led by two of the most incompetent Congressional leaders in American history in the persons of Ryan and McConnell, is failing in its duties, specifically to preserve the necessary balance of powers. Ryan, in particular, has become a startling personification of the refutation of his own argument for applying middlin’ amateurs to problems better solved by smart experts. I say this not for his views, which deserve their own rant, but his own shocking ignorance concerning matters of the world outside of his cloistered Washington, D.C. office, as well as the wretched “landmark” bills which have been passed by the House, albeit on party-line votes.
If the Democrats take the House and Senate at the mid-terms, they may be better served reprimanding President Trump not on foreign emolument charges, which is a somewhat nebulous charge, but rather on violating Article II of the Constitution.
