The interesting history and opportunity of Biden’s evolution on war powers 

This article was also published on Lawfare.

While each episode differs in its particulars, and legal justifications of varying levels of credibility might be offered for each, they collectively reflect a decades-long drift of warmaking powers from Congress to the executive in contravention of our constitutional design. It is far past time for Congress to reassert its role in war making and reestablish the balance the Founders envisioned.

Earlier today, we filed a Freedom of Information Act (FOIA) request with the Biden Administration’s Departments of Defense, Justice, and State demanding the release of its legal justification for ongoing military action in Yemen. The request mirrors a nearly identical request we made of the Trump Administration in 2017, when it launched missile strikes in Syria. (We made additional requests for similar reasons of the Trump Administration in 2020 and of the Biden Administration in 2021). In all of these cases, the executive branch launched missiles at nations with whom we were not at war and without clear authorization from Congress.  

The breakdown of our constitutional system’s division of warmaking powers

Our Constitution divides the power of making war between Congress and the executive as an important check on that weighty responsibility. The executive has the ability to move expeditiously, and can centralize the kind of decision making in execution that a commander in chief needs to be effective. Congress, on the other hand, is more representative of public sentiment and its role ensures a democratic check so that anytime the nation bears the costs of making war, it has the necessary public support behind it to prevail. To implement that division, Article I gives Congress the exclusive power to declare war and fund military activities, and Article II gives the president the power to manage foreign policy and command our forces. 

But Congress has not officially declared war since World War II, opting instead to use the lesser tool of authorizing military force or, in many cases, simply acquiescing to the unilateral decision making of the executive. The United States fought the Vietnam War, for example, from – depending on when you mark its beginning – sometime in the late 1950s or early 1960s through 1975 without Congress ever declaring war.   

The results were disastrous. More than 58,000 Americans were killed in Vietnam and the nation was nearly torn to pieces over it, with massive protests on the homefront, often directed at the very soldiers who were drafted against their wills to fight a war that did not have sufficient public support.  And just as the Founders feared, a war without public support was a war the US was destined to, and indeed did, lose. 

In an effort to prevent that from happening again, in 1973 Congress passed the War Powers Resolution, a statute designed to rebalance power in the direction of the original constitutional design. The War Powers Resolution recognizes that there are situations where presidents may need to act with exigency in defense of the nation to repel an imminent threat, but imposed on presidents a requirement of notifying Congress within 48 hours if, absent a declaration of war, American forces are introduced either “(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat,” with a few limited exceptions; “or (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation.”  If Congress doesn’t affirmatively authorize the continuing deployment of forces under situation (1) within 60 days (or 90 in some cases), the president’s actions must cease. 

But nearly from the moment it was passed, presidents began to chip away at the balance, again expanding the role of the executive at the expense of Congress.  In 1983, President Reagan launched what was effectively a war in Grenada without congressional approval. In 1999, President Clinton ordered the US to join what was unquestionably a war in Kosovo without congressional approval. And in 2014, President Obama launched a new front in the global war on terror in Syria, also without clear congressional approval. In all of these cases, these presidents’ lawyers made aggressive arguments aiming to justify their actions as authorized. According to one report, between 1973 and 2019, presidents ordered foreign military attacks in more than 100 instances without Congress having declared war with respect to any of them. 

President Trump & the Syria strikes

The logical endpoint of this expansion of executive power was that a president might eventually act as if no restraints on their warmaking power existed at all. Enter Donald Trump. In April 2017, shortly after we had formed Protect Democracy, Trump ordered missile strikes on Syria. It was not clear how the administration could possibly claim to have had the legal authority to justify those strikes, so one of the first things our new organization did was to demand his administration produce its legal justification for those strikes. In litigation we pursued to enforce the FOIA request, a federal judge in Washington, D.C. ordered the Trump Administration to expedite the request, underscoring that the public “being closed off from such a debate [as to the legality of US military action] is itself a harm in an open democracy.”    

To raise further attention to the danger of unchecked executive warmaking, we then worked with offices on both sides of the aisle in the Senate Foreign Relations Committee to support hearings into executive overreach in war making, and eventually worked with Senator Tim Kaine’s office to extract a promise from then-Secretary of State nominee Mike Pompeo that, if confirmed, he would promise to release the legal justification for the 2017 Syria strikes we had sought from the Trump Administration.

On June 1, 2018, the Trump Department of Justice published an opinion from its Office of Legal Counsel (OLC) articulating its view of its legal authority to have launched a second set of strikes in Syria in 2018.  However, the administration never produced any similar opinion that might have purported to justify the original 2017 strikes about which we’d FOIA’d and sued.

The 2018 OLC memo, building on prior extremely tenuous rationales put forth by the Obama Justice Department, articulated perhaps the broadest claim yet for unbridled executive authority to initiate military action absent congressional approval. But what was more disturbing was that email correspondence and other evidence revealed through our FOIA and press reporting suggested that the 2017 strikes appeared to have been conducted without much meaningful prior legal analysis at all. If that was indeed the case, it underscores the danger of unchecked executive power in this realm: that a president like Donald Trump might simply ignore the fact that any legal restrictions on their warmaking powers exist and make war without even going through the motions of checking whether he had any authority to do so.

In that sense, while we have made similar FOIA requests of both the Biden and Trump Administrations, that does not make them the same. Like John Adams, Franklin Roosevelt and Ronald Reagan before him, Joe Biden has sought to expand the bounds of executive authority. That is what all presidents do. But typically, at the end of each presidency, there will have been situations in which the president had sought to expand executive authority and others in which they had honored the restrictions on it. Trump is unique among the 45 presidents we have had in that he respects no restrictions whatsoever on the presidency – every example falls on the first side of that ledger. 

But even for presidents who do go through an internal legal analysis prior to taking action, the loopholes executive branch lawyers have created are so broad as to give the president virtually carte blanche warmaking powers, and that has happened largely with Congress’ acquiescence.

Erosion of congressional oversight

As these recent examples illustrate, there is a clear need for Congress to reassert itself as a co-equal branch with significant authority over war powers. To understand how best to do that, it’s useful first to step back and briefly trace how this expansion of executive power over the last several decades was accompanied by a meaningful curtailment of Congress’s ability to fight back. 

In a 1983 case called INS v. Chadha, the U.S. Supreme Court struck down what was known as the legislative veto. This was a tool Congress included in a host of legislation in the 1960s and 70s from war powers to arms sales to emergency powers that delegated powers to the executive while reserving for itself the ability to override executive action through a resolution passed by either or both houses of Congress. When the Supreme Court struck down that override tool, it destabilized the balance of power Congress had intended, shifting more power to the executive.  

To better understand the ramifications of the Chadha decision, Senate Democrats quickly formed a task force for further inquiry.  Among the task force’s members was none other than then-Senator Joe Biden, whose work led him to several conclusions, published in the Syracuse Law Review in 1984, about the consequences of Chadha and proposed solutions. His view was that the impact of Chadha on domestic policy would be minimal, but that its impact on foreign affairs – in particular war making and arms control – posed a significant risk of destabilizing the proper balance of power between the branches. 

With respect to arms control, then-Sen. Biden insisted that after Chadha, Congress needed to “re-establish a workable system of Congressional oversight over arms sales” and co-sponsored legislation to do that which would have required affirmative congressional action to approve those arms sales deemed “major” or “controversial” in Biden’s own words. With respect to war making, Sen. Biden was even more concerned that the impact of Chadha might undermine the careful balance established in the War Powers Resolution, which he called “valuable constraints upon the president.” In Chadha, Biden wrote, “we have lost one of the most effective means we have of encouraging, forcing if necessary, the President to consider the views of Congress and the American people in committing troops overseas.”

And yet, once Senator Biden became President Biden, as happens when public officials transition to a different role, his positions have shifted. In responding to New York Times reporter Charlie Savage’s quadrennial candidate survey on executive power in 2019, Biden expressed the view that presidents have inherent authority to direct military operations abroad “when those operations serve important U.S. interests and are of a limited nature, scope, and duration.” (Our emphasis, as that language tracks the extremely broad loophole recent Justice Department opinions have carved out). The Biden Administration has also twice recently invoked emergency powers to circumvent Congress in providing arms to Israel (this despite the fact that Secretary of State Anthony Blinken had pledged to return to a regular process after the Trump Administration had circumvented Congress in transferring arms to Saudi Arabia and the United Arab Emirates in 2019). And now, the Biden Administration is escalating its military strikes in Yemen without congressional authorization and reporting that they may seek to skirt the deadlines imposed by the War Powers Resolution.

But Biden’s shift could also be an asset for reform. Biden’s experience viewing these issues through the lens of senator and now president gives him a historic opportunity. Having personally experienced how these roles have a force of their own in amassing executive power, he of all people should recognize the need for stronger guardrails against executive aggrandizement and further titling of the balance.  And his brave withdrawal from Afghanistan also reflects his experience as a member of the Vietnam generation of the risks of endless wars that lack or lose the support of the American public. 

Opportunities for reform

Thankfully, Congress has begun to wake up to the need for reform. A cross-ideological group of members have come together to introduce legislation to enact stronger guardrails on the warmaking power. The National Security Powers Act, backed by Senators Chris Murphy (D-CT) Mike Lee (R-UT), and Bernie Sanders (I-VT) would close some of the interpretive loopholes that executives have opened in the War Powers Resolution and address the post-Chadha challenges that Biden himself had identified. Similar bipartisan legislation, the National Security Reform and Accountability Act, has been introduced in the House by Representatives Jim McGovern (D-MA) and Nancy Mace (R-SC).

These bills have a serendipitous connection to the thinking of then-Senator Joe Biden, who offered that one solution for Congress to reclaim its authorities in the post-Chadha era would be to provide that certain executive branch powers should automatically sunset absent affirmative congressional authorization within a short period of time. Then-Senator Biden actually proposed a reform that would have sunset certain authorities in an arms export reform bill in 1986. That’s the precise approach contained in these bipartisan bills in both the Senate and House. President Biden should endorse these approaches and call on Congress to send legislation to his desk for signature.

President Biden has spoken compellingly about the historic moment in which we find ourselves, with the threat of authoritarianism being the defining danger of our time. It is precisely in such a moment that the danger of expanded executive authority is most concerning. And with candidate Trump seeking to return to the Oval Office with the idea of, among other things, launching military strikes on Mexico, restoring the Founders’ balanced vision for warmaking could not be more important. As part of his commitment to protect democracy, President Biden should lead us back to that balance. 

In the meantime, the president should also tell his lawyers he does not want ever broader legal rationalizations for expanding presidential warmaking authority, as The New York Times recently reported is being considered. And his administration should respond to our FOIA and multiple recent bipartisan Hill letters from the Senate and House seeking further information about the administration’s legal rationale for its strikes in Yemen and caution about further escalation absent congressional approval. 

About the Authors

Ian Bassin

Co-Founder and Executive Director

Ian Bassin is co-founder and Executive Director of Protect Democracy. He previously served as Associate White House Counsel, where he counseled the President and senior White House staff on administrative and constitutional law.

Aisha Woodward

Head of Constraining Executive Power Team & Policy Strategist

Aisha Woodward leads a team at Protect Democracy focused on constraining the abuse of presidential power, restoring congressional oversight of the executive branch, and growing the pro-democracy coalition.

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