“Use of the congressional power to declare war, for example, has fallen into abeyance because wars are no longer declared in advance,” Senator Robert Taft wrote in 1951. “It would be a tremendous stretching of the Constitution to say that without authority from Congress, the President of the United States can send hundreds of thousands of American soldiers to Europe when a war is raging over that entire Continent, and the presence of American troops would inevitably lead to war.”
It has only gone downhill since. The two most important causes are, first, that the authority of the Congress has been supplanted by a permanent bureaucracy in Washington, and second, that international institutions now dominate American grand strategy.
Chief among them is NATO, and with it the idea that NATO’s Article 5 automatically compels the United States to join a war. This is of course not so. Article 5 merely initiates a joint defense clause, which compels the treaty allies to come to each other’s defense, without mentioning the scope of the actions. Consider that, after the only invocation of Article 5, after the attacks on September 11, only around thirteen countries actually actively took part in combat sorties. The principle applies in reverse; Article 5 does not compel the U.S. to take part in combat operations without the authorization of Congress.
To that cause, some Republican Senators and Representatives have introduced a resolution to take the war power back into the hands of Congress. Senator Rand Paul of Kentucky in the Senate and Representatives Warren Davidson of Ohio and Chip Roy of Texas are at the forefront, joined by Senators Cynthia Lummis of Wyoming, Josh Hawley of Missouri, Mike Braun of Indiana, and Mike Lee of Utah, as well as Reps. Dan Bishop of North Carolina, Troy Nehls of Texas, Harriett Hageman of Wyoming, Paul Gosar and Andy Biggs of Arizona, Andrew Clyde and Marjorie Taylor Greene of Georgia, and Matt Rosendale of Montana.
Explaining his resolution, Paul wrote,
For decades, many legislators have incorrectly interpreted Article 5 as an obligation that unquestionably commits the United States to provide military support should a NATO ally be attacked… But that is not exactly what Article 5 states. Article 5 states, “The Parties agree that an armed take against one or more of them . . . shall be considered an attack against them all and . . . each of them, in exercise of the right of individual or collective self-defense . . . will assist the Party or Parties so attacked by taking forthwith . . . such action as it deems necessary, including the use of armed force…” In other words, NATO allies are committed to assist each other in the event of an attack, but military action is not mandated, and the United States maintains its sovereign capacity to determine what kind of response is warranted.
Davidson added, “Only Congress can constitutionally authorize the use of military force, and Article 5 of NATO does not supersede the Constitution”—a sentiment also echoed by other senators and representatives. For example, Lummis said, “America must honor our Article 5 commitment, but we cannot allow NATO to supersede our nation’s laws, or we risk losing sight of the principles and values that make this country so special.”
The potential return of war powers to Congress has gotten some serious push lately. Russ Vought, President of Citizens for Renewing America said to me that “NATO is too often treated as a foreign policy holy sacrament, by the foreign policy elite. Like any alliance, NATO’s utility should be constantly reexamined and it should not supersede the Constitution.”
But the core principle in question is even broader and theoretical. A functioning republic, to retain its republican character, needs a patrician class who are elected representatives of the people and are accountable ultimately to the public. Over the last few decades that has eroded to the point where they have given up their power to a praetorian class, a combination of unelected bureaucracy at home and international institutions abroad, simultaneously disdainful and unaccountable.
That is, of course, unsustainable. This resolution, belatedly, attempts to claw back some of that power and signifies a reaffirmation of the core representative principles of the American republic. As Congressman Roy said, “No one has the power to declare war without Congress’s deliberation and our constituents’ consent; it’s high time this body conducted itself accordingly.”
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