Answer

The Bad Side of the Current Congress-President War Power Balance

The Constitution gives Congress the power to declare war. The benefit of hindsight makes us see that this situation was designed this way to make it as hard as possible to get into wars. History is replete with examples of how the unilateral decisions of the Executive dragged nations through periods of conflict and war, leading to loss of millions of lives, destruction of property and other ills associated with war. The founders then saw it wise to bestow upon the Legislature the power to declare war and thus approve the country’s engagement in conflicts around the world (Griffin & Waxman, 2020). For a long time, this was the standard of practice, but not anymore. In this essay, the realities of modern warfare and the side-stepping of the constitutional intention that have combined to create a power imbalance in terms of the decision to engage in wars are discussed. There is an increasing gap between what is specified as the role of Congress in military conflict in the constitution and the realities we see in practice.

Central to the understanding of the power balance is the explanation behind the terms to “make war” and its replacement with the terms to “declare war”. The history of the Constitution makes it clear that earlier Constitutional drafts had given Congress the power to make war (Griffin & Waxman, 2020). In time however, this would be replaced with the power to declare war. Initially, this was a response to the grim realities of war and conflict that continued to evolve time after time. The change was seen as timely in its capability to ensure that the president retained his authority and ability to fight back from sudden enemy attacks without needing the express authority of Congress well in advance. In addition, this change aimed at ensuring that Congress was not going to micromanage the planning, execution and logistics of the war, something that was the right of the president in his or her capacity as the Commander-in-Chief. This change then was instituted to make the action of war engagement more efficient by making it less bureaucratic, at least in the short term.

Long before President Harry Truman sent American forces into the Korean Peninsula, the relative power balance had shifted, and formal war declarations were markedly very rare. President Truman set off a chain of succeeding precedents in which presidents intervened in or initiated military interventions in other nations without the express authorization of Congress (Ingber, 2016). Several examples can be cited in this regard: President H.W Bush’s deployment of troops in Somalia and in Panama, interventions by President Clinton in Kosovo, Bosnia and Sudan, President George Bush’s Haiti intervention and President Obama’s airstrikes in Yemen and in Libya. In all these instances, the explanation provided has been the trend in following historical precedents already set. It is as if the entire understanding of the provision to engage in war activities to put at bay sudden foreign attacks has been repeatedly misunderstood as a licence to engage in military interventions to secure the strategic interests of the nation, provided that these interventions do not degenerate into a full-blown war.

The lopsided power balance can also be seen through the consistent failure to implement the provisions of the War Powers Resolution (WPR) of 1973. According to this signature legislation, a sitting president has 48 hours to report to Congress about a decision to intervene militarily in situations with hostilities. When this intervention extends beyond the 60^th-90^th day of reporting to Congress, the legislation stipulated that the intervention has to be stopped unless it is approved by Congress. Interestingly, and even more powerfully for the Legislature, the law gives this branch the authority to compel the president to withdraw troops in such an instance through a legislative veto which can pass without getting signed by the president. However, the imbalance in power comes in the way that presidents in recent years have sought to interpret the 60-90 day rule. Most of the modern-day presidents have interpreted this to mean that they have the authority to intervene in conflicts and engage in warfare for the said period without the approval of Congress (Haas, 2017). While the law requires the reporting of “hostilities”, the same presidents have tended to exclude most modern military interventions from being characterised as so. They have then gone ahead to engage in combat without reporting such instances to Congress.

The negative side of the Congress-president power balance is also seen by the common modern-day practice of presidents going beyond the scope of Congressional authorizations when such authorization is given. In 2001, the legislation Authorization for Use of Military Force went into effect to effectively hold to account all nations, organizations and individuals who were deemed to have had a hand in the planning and execution of the events of September 11. Nzelibe (2018) argues that the over application of this provision that was specific in scope and in time has been seen in recent years where it is used to explain involvement with groups and organizations that were not even in existence by 2001. Presidents have used their power to argue that the law applies eve to those groups that may be considered merely as associated forces to the organization that were instrumental in 9/11. This has created a bad power balance between Congress and the president.

While it is the constitutional mandate of parliament to designate an enemy, the presidents have often assumed this role and engaged in various military actions against States, individuals and organizations that they perceive as being unfriendly and posing a threat to the nation. The true recourse and solution to these kinds of interventions and which can be used by Congress to great effect is to authorize or refuse to fund war activities that they deem an executive overreach (Ingber, 2016). In terms of military spending and expenditure then, Congress still holds the reigns and this Legislative branch can use this to achieve the intention that was originally set out for it by the drafters of the Constitution in terms of the War making role.

As discussed above, it can be seen that over time, Congress has ceded some of its power to the Executive as far as the issues of foreign relations and national security are concerned. The consequence is that several presidents have exploited loopholes in legislation to usurp the power initially bestowed upon Congress to engage in military conflicts. As it stands now, the only leash Congress has on presidents who make war declarations even without explicitly saying so is to withhold the funding of such ventures. In the end, the situation as it stands now is a clear demonstration of a negative balance of power between the two branches of governmentperforming household chores or duties.

.