On Attempts by Congress to Reign in the President

So, the House has voted to reign in the President's authority to engage in  military activity against Iran.  This legislation may very well not even reach a vote in the Senate.  It if does, it will presumably have to pass the 60-vote threshold, which it won't.  If by some miracle it passes the Senate, the President will veto it and Congress will lack to votes to override his veto. 

This legislation was undertaken under the War Powers Act, which once upon a time I believed in.  The War Powers Act was passed in the wake of the Vietnam War.  Congress, alarmed that Presidents had deployed 300,000 troops to Korea and 500,000 to Vietnam without a declaration of war, passed the War Powers Act in 1973 in an effort to prevent such wars in the future. 

The War Powers Act requires the President to give notice within 48 hours of introducing the US military into "hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.”  The President must end such activities within 60 days unless Congress gives the authorization to continue.  And we have all seen how effective that was.

Presidents have regularly challenged the War Powers Act as an unconstitutional restraint on the President's power as commander-in-chief, while opponents of war and executive power have challenged unilateral executive military actions as violations of Congress's power to declare war.  And it is almost a cliche to point out that we have not had a declaration of war since WWII despite having fought several large-scale wars since.

I used to support the War Powers Act.  But since then I have given up on it, not because I think it is unconstitutional, but because it ignores political and military reality.

Congress has sole authority to create the military, and to un-create (or at least shrink) it.  Article I, Section 8, Clause 12 of the US Constitution gives Congress the power "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years."  The purpose of forbidding any appropriation for more than two years was to keep the army from becoming a self-funding monstrosity outside of civilian control.  Congress can also make rules governing how the military operates, i.e., create a code of military law that the armed forces must follow.

The President is commander-in-chief of the armed forces and makes day-to-day strategic and tactical decisions, a matter that Congress is clearly not suited for.  But how far does this power extend?

And the ultimate answer, not based on constitutional principles, but on real world outcomes, is that if Congress gives the President an army, there is very little it can do to keep him from using it however he pleases. 

We have had five declarations of war in our history -- the War of 1812, the Mexican-American War, the Spanish-American War, WWI and WWII.  We have had (by my estimate) five major, undeclared wars since -- the Korean War, the Vietnam War, the Gulf War, the Afghan War and the Iraq War.  (Others may count differently).

But we have been having undeclared military operations since Jefferson sent the Marines to the shores of Tripoli.  We have had a very long series of undeclared interventions in Central America and the Caribbean, and a few in Mexico.  We participated in suppressing the Boxer Rebellion in China.  We fought a long insurgency in the Philippines.  And doubtless we engaged in many undeclared overseas military operations that I don't know about. 

The point here is, once Congress gives the President a military, there is very little it can do to prevent him from using it as he pleases.  The reason we had an actual declaration of war on those five occasions was simple -- we didn't have enough forces fight them.  The President had to go to Congress to request an expansion of the military large enough to fight the war he wanted, and the best way to convince them to give the army was to ask for a declaration of war.

Once we started having a standing military at all times that was large enough to fight major wars, Presidents proceeded to use it.  Most made at least a show of asking Congress for approval, but approval was never hard to get when the war fever got going and anyone who questioned it was dismissed as unpatriotic. 

All of which leaves us in a quandary.  Giving up our military is not really an option.  But preventing the President from using it as he pleases has not proven practical.  I am still looking for an answer.