Twenty years ago today Congress voted to authorize President George H.W. Bush to use military force against Iraq to end the Iraqi occupation of Kuwait. The House vote was 250 to 183. The Senate vote was closer, 52 to 47, but not as close as most experts predicted. The Gulf War began four days later.
An interesting “what if” question is what would have happened if the Senate had said no. President Bush said in the run-up to the vote that he did not need a permission slip from Capitol Hill to go to war. As he put it in a speech to the Texas State Republican Convention a year after the war ended: “I didn’t have to get permission from some old goat in the United States Congress to kick Saddam Hussein out of Kuwait.” Given that Bush had assembled a multinational coalition to liberate Kuwait and thus U.S. global credibility was on the line, he probably would have gone ahead over Congress’s objections. (He said in his memoir with Brent Scowcroft that was what he would have done. My boss, Richard Haass, who worked the Gulf War issue for Bush, believes him.)
That would have precipitated a constitutional crisis because the U.S. Constitution lodges the power to declare war in the hands of Congress. What the courts would have done is anyone’s guess. Early in its history in rulings such as Little v. Barreme (1803) the Supreme Court had no qualms about taking up foreign affairs cases or ruling against the executive branch. The Court became more reluctant to police the boundaries in the separation of powers in foreign affairs once the United States became a global power, often dismissing such cases on the grounds that they raise “political questions” that lie beyond the Court’s expertise. This has been true even when the question at hand poses what looks to a non-lawyer to be a straightforward legal question–for example, can the president terminate a treaty without the Senate’s (or Congress’s) consent?
Whatever the outcome of our hypothetical court case, the fact that Congress’s refusal to approve military action would precipitate a political and constitutional crisis makes it almost unthinkable that we will ever end up in that situation. The law of anticipated reactions applies. Presidents who stand no chance of winning will not ask Congress to vote. Presidents who think they can win will ask for a vote and then use the dangers potentially unleashed by not getting their way to push reluctant lawmakers into the “yes” column. History shows that Congress generally prefers not to deliver a public defeat to the president on a crisis issue.
Alexander Hamilton always understood this latter dynamic. As he admonished James Madison in their famed Pacific-Helvidius debate over what the Constitution meant, “there is the right of the executive, in certain cases to determine the condition of the nation, though it may, in its consequences, affect the exercise of the the power of the legislature to declare war.” Or as Sen. Arthur Vandenberg put it a century-and-a-half later, crises “never reach Congress until they have developed to a point where Congressional discretion is pathetically restricted.” Nothing has changed.