Permission to do battle

MARY REICHARD, HOST: Coming up next on The World and Everything in It: going to war.

Here’s a question from Civics 101. Which branch of the U.S. government has the power to declare war?

PAUL BUTLER, HOST: Congress. Right?

REICHARD: That’s right. It’s a pretty awesome power, and thankfully, one that’s rarely used. That might come as a surprise, given the number of military engagements U.S. forces have been involved in over the last two centuries. In fact, most of the conflicts we think of as wars aren’t really wars at all, according to the constitutional definition.

BUTLER: The way the U.S. government handles military engagements hasn’t changed much in the last 50 years. But a new reform bill would give both the executive and legislative branches new marching orders.

WORLD correspondent Caleb Bailey reports.

CALEB BAILEY, REPORTER: In 1941, Congress voted almost unanimously to declare war on Japan. Here’s President Franklin Roosevelt.

ROOSEVELT: ... since the unprovoked and dastardly attack by Japan on Sunday, December 7, 1941...

That vote propelled the United States into World War II. And it was the last time Congress issued a declaration of war.

But it was not the last time U.S. troops have gone into battle.

Cully Stimson manages the National Security Law program at the Heritage Foundation.

STIMSON: Remember, Article One, Section Eight, Clause 11 of the Constitution is the Declare War Clause. And Congress, and Congress alone, under our constitutional framework, has the authority to declare war. And so Congress has declared war five times, in our nation's history. And they've authorized the use of military force over 40 times.

Those 40 authorizations have included some historic military conflicts. Korea. Vietnam. Iraq. Afghanistan. For all of those engagements, the president has used what is supposed to be a much more limited authority to order troops overseas.

But in practice, declaring war and authorizing military force are nearly indistinguishable. So what’s the difference?

A declaration of war implies a long-term conflict between two parties. It’s such a serious step the Framers wanted to make sure no one person wielded that power. But the president still needs the ability to take swift action in more limited situations.

STIMSON: And so although Congress has the authority to declare war, it's up to the president to prosecute the war. And it's also up to the president and not 435 members, or 535 members of Congress, that's the House and the Senate combined, to be little mini commanders in chief. So the president is required, in fact, duty bound, to defend the nation. So he can act with dispatch, and quickly as things change, and there are attacks on our country. And you don't want to wait around for Congress to debate these things.

The Framers built this tension into the Constitution as part of the system of checks and balances.

But by 1973, Congress decided the executive branch had too much power to involve the country in unnecessary conflicts. That year, lawmakers passed the War Powers Resolution. It requires the president to notify Congress within 48 hours of sending U.S. forces into hostilities. Congress then has 60 days to approve the operation or … the president must order the troops to stand down.

But Cully Stimson says in nearly 50 years, Congress has never refused to back a president’s use of force.

STIMSON: Congress has the power of the purse, as it's called. And so Congress can withdraw, on a going forward basis, financial support for ongoing military operations, but that's politically risky for them, and so they have not done it.

Critics say that has thrown the balance of power way out of whack. The War Powers reform legislation proposed in July aims to correct that imbalance.

Eric Gomez is the director of defense policy studies at the Cato Institute.

GOMEZ: The slightly more optimistic take is that just by doing this and caring about it, Congress might exercise some muscles that have atrophied, right, it might care enough about this type of thing again, and it might get the experience of doing this, where maybe some members feel more passionate or more active about, give us an you know, we want a more active say and what happens.

The reform proposal tackles four major issues: It shortens the 60 day window for congressional approval to 20 days. It automatically cuts off funding to operations not authorized by Congress. It sets new requirements for authorizing the use of military force. And, it ends existing use-of-force authorizations, known as AUMFs.

Three are currently in effect: the 2001 response to 9/11 and two involving Iraq. One of those dates back to 1991 and the other to 2002.

Because the AUMFs don’t have a definite end date, they tend to live on in perpetuity. Eric Gomez says that’s partly because the current War Powers Resolution uses vague language to define a key term: hostilities.

GOMEZ: There's been a lot of dispute over legally what do hostilities mean? [6:35] The most notorious one is the 2001 AUMF, which was approved by Congress after the 9/11 terrorist attacks, and it's very short. And it just says, we can take action, all necessary and appropriate force, against entities that authorized or perpetrated the 9/11 attacks, aided the entities involved, or harbored anyone involved. And that justification has been used since 2001, to authorize strikes against countries that weren't involved in 9/11. So we've we've used them to justify attacks against ISIS, or justify operations against ISIS.

The proposed reform bill would define hostilities as ​​any situation involving any use of lethal or potentially lethal force by or against the U.S. military. That means just about any engagement would trigger congressional oversight.

Changing the way the U.S. military goes to battle might not be top of most voters’ minds heading into next year’s midterms. But both Eric Gomez and Cully Stimson say it’s one of the most important items on the congressional agenda.

STIMSON: I'm a third generation Navy officer, I'm a captain, I've been around 29 years in the military, I don't know anyone who's pro war. In the military. I don't know one person. I know a lot of people. But what they do demand is for their political leaders to explain to them the mission, the authority for that mission, and the reason behind it. And that's Congress's job. And so that's why this is much different than almost any other federal action.

Reporting for WORLD, I’m Caleb Bailey.

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