Robert F. Jakubowicz: Congress' abdication of war powers leading to greater dangers

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PITTSFIELD — The major reason Americans were deeply worried about the killing of Iranian Major General Quassem Soleimani in Baghdad by order of President Donald Trump is that presidents now act as if they have an unchecked and imbalanced power to declare war against sovereign, foreign governments. There was a high risk that this killing would lead to an escalation of a series of acts of war between the two countries culminating in the president unilaterally starting a full blown war against Iran. What has happened to the constitutional power of Congress to "declare war?"

Since the end of WW II, presidents have considered the involvement by Congress in these matters as an unconstitutional usurpation of presidential power. President Trump joined this group of presidents with his recent, unilateral act of war, his order to kill Soleimani. His ability to make such a decision without the check and balance of Congress fits his view of governing that the can do anything he wants as president and that he makes decision based on his gut feeling.


This mix of de facto sole power by a president to start a war and a president in office who says he can act like a king and do anything he wants is dangerous problem. Congress has allowed this to happen by abdicating its power to declare war and has allowed presidents to initiate wars for the last 78 years. It will be difficult at this point for Congress to change this situation without a pitched constitutional battle. Presidents have been pushing the limits of their implied constitutional powers for a long time with no desire to give any of them up. This expansion of powers has been greatly escalated by Trump.

It is clear to me that the expressed language in the Constitution was intended to separate war powers for the collective judgment of Congress and the president. Article I, Section 8 of the Constitution specifically states that "Congress shall have the power (to) provide for the common defense declare War (and) raise and support Armies." Article II says that the "President shall be the Commander in Chief of the Army and Navy "

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I agree with the early interpretation of this language that in effect it requires congressional action (e.g., the declaration of war and its support of the armed forces to fight the war) as necessary for American involvement in wars or acts of war in foreign countries and that the president's role is to direct the armed forces in conducting such a war or acts of war. Such a sharing of power is consistent with the overall separation of power principle in the Constitution. It is also consistent with the rebellion by the colonists against a monarchy that among other things gave a king such unfettered power. It makes no sense to me that the framers of the Constitution intended that the president alone should have a monarch's power to both declare and make war. In addition a controversy has also developed among some constitutional expert over what they now consider as being vague constitutional language about war powers that need interpretation. I don't agree. I think the language is clear enough that the Founding Fathers intention was to require the joint judgment of Congress and the president in decisions regarding war.

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Since World War II many presidents have ignored Congress in initiating and continuing war actions. Harry Truman involved America in the Korean War as a United Nations police action without a congressional declaration of war. Presidents John F. Kennedy, Lyndon Johnson and Richard Nixon waged an undeclared war in Vietnam.


In 1973, Congress tried to reassert itself in such a decision making process by passing a joint resolution called the War Powers Act. Nixon vetoed this resolution, but Congress overrode his veto. Its main purpose was to require the executive branch to consult with and notify Congress of the deployment of armed forces in foreign countries within 48 hours of such action and to end the engagement in hostilities by such forces after 60 days if Congress did not approve.

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The supporters of this resolution said it was intended to prevent another Vietnam. But it was not an effective measure to curb presidents from deploying armed forces overseas and waging war. Ronald Reagan deployed troops to El Salvador without consulting with Congress and Barack Obama ordered military action in Libya without congressional authority.

Now House Speaker Nancy Pelosi says that she wants to take action to limit such military acts by the president in Iran to a short period of time unless there is a declaration of war or authorization by Congress within that time period. But the GOP majority in the senate is not likely to approve such a resolution and even if it did the president would veto it with little chance of a congressional override.

This problem is another good reason why a president like Trump should not serve another term.

Robert "Frank" Jakubowicz is a regular contributor to The Eagle.


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