Have certain parts of the Constitution become irrelevant, as a former Republican leader once told me at a Foreign Affairs Committee hearing? At the time, I was told that demanding a congressional declaration of war before invading Iraq, as Article I Section 8 of the Constitution requires, was unnecessary and anachronistic. Congress and the president then proceeded without a constitutional declaration and the disastrous Iraq invasion was the result.
Last week, Obama administration officials made it clear that even the fig leaf of congressional participation provided by the 2003 "authorization" to use force in Iraq was to be ignored as well. In a hearing before the Senate Armed Services Committee, Defense Secretary Leon Panetta stated clearly and repeatedly that the administration felt it was legally justified to use military force against Syria solely with "international permission." Such "international permission" could come by way of the United Nations, NATO, or some other international body. Secretary Panetta then told Senator Sessions that depending on the situation, the administration would consider informing Congress of its decision and might even seek authorization after the fact.
While Senator Sessions expressed surprise at the casual audacity of Panetta in making this statement, in reality his was just a bluntly stated explanation of what has been, de facto, the case for many years. When President Obama committed the US military to a pre-emptive war against Libya last year, for example, Congress was kept completely out of the process. Likewise, military action in Iraq, Pakistan, Somalia, Yemen and so on proceed without a congressional declaration. In fact, we haven't had a proper, constitutional declaration of war since 1942, yet the US military has been engaged in Korea, Lebanon, Iraq, Bosnia, Liberia, Haiti and Libya with only UN resolutions as the authority. Congress's only role has been authorizing funds, which it always does without question because one must "support the troops."
Of course, we should reserve our harshest criticism for Congress rather than the administration. If the people's branch of government abrogates its constitutional authority to the executive branch, who is to blame? Who is to blame that Congress as a body will not stand up and demand that the president treat the Constitution as more than an anachronistic piece of paper, or merely a set of aspirations and guidelines? The Constitution is the law of the land and for Congress to allow it to be flouted speaks as badly about Congress as it does about a president who seeks to do the flouting.
Just last week the administration announced that it would begin providing material support to the rebels who seek to overthrow the Syrian government. Was Congress involved in this decision to take sides in what may develop into a full-fledged civil war? And what of reports that US Special Forces may already be operating inside Syria? Still, Congress sits silently as its authority is undermined. Does anybody really wonder why approval numbers for Congress are so low?
Many of my colleagues who stood by as then-President Bush used the military as a kind of king's army are now calling for Congress to act against this president for openly admitting that is his intent. I agree it is time for congressional action in response to these attacks on our Constitution, but the solution is simple and constitutional. The solution is simply voting to withhold funds, since Congress has the power of the purse. No money for undeclared wars!