Author name: Common Defense

When American Airlines Flight 11 slammed into the World Trade Center’s North Tower, millions initially believed they were witnessing a terrible accident.

The second impact shattered that illusion and reminded the nation that grave coincidences are for the naïve.

The attacks of Sept. 11, 2001, launched two decades of American combat in Afghanistan, Iraq, the Arabian Peninsula, Africa, and beyond.

Whether those campaigns secured lasting political objectives remains debatable, but the initial decisions followed the constitutional process.

President George W. Bush went to Congress, and Congress approved separate Authorizations for the Use of Military Force.

That shared responsibility is how a constitutional republic is supposed to make the grave decision to send Americans into battle.

Twenty five years later, Washington needs a refresher.

The Constitution divides war powers between Congress and the president, but Article I deliberately gives Congress the heavier burden of declaring war, funding forces, maintaining the Navy, and regulating the military.

James Madison explained the intended balance in Federalist 51: “In republican government, the legislative authority necessarily predominates.” Congress was designed to be first among equals, not a ceremonial bystander waiting to finance whatever campaign the executive branch begins.

Article II names the president “commander in chief of the Army and Navy of the United States,” but it does not hand one person unrestricted power to choose America’s wars.

Alexander Hamilton described that authority in Federalist 69 as “nothing more than the supreme command and direction of the military and naval forces.”

“Command.” Military personnel understand the distinction because commanders lead assigned forces, but they do not invent their own wars. The president commands the military while Congress, representing the people, decides when the nation enters sustained international conflict.

Emergencies can require immediate presidential action, especially when an attack leaves no time for Capitol Hill debate.

Daniel Webster described that necessity after the Caroline affair as “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”

When time exists, however, Congress should deliberate before American blood, treasure, munitions, and credibility are committed. Presidents who bypass that process effectively write blank checks that taxpayers and service members are later ordered to cash.

Congress attempted to reclaim its authority through the War Powers Resolution of 1973, which requires notification within 48 hours and generally requires troops to be removed after 60 days without authorization. Presidents from both parties have challenged or maneuvered around that framework.

Justice Robert Jackson provided a useful standard in the 1952 Youngstown Sheet and Tube case. Presidential power reaches its zenith with congressional approval, enters a “zone of twilight” when Congress remains silent, and falls to its “lowest ebb” when a president acts against Congress’ expressed will.

The problem has crossed party lines. President Bill Clinton used military force in Bosnia, while President Barack Obama joined strikes tied to a United Nations Security Council resolution, and neither first secured congressional authorization.

President Donald Trump’s 2020 strike killing Qasem Soleimani cited a “threat of imminent attack” and “important national interests.” Congress responded with a resolution seeking to terminate force against Iran, but Trump vetoed it, demonstrating the institutional collision that follows when lawmakers surrender their authority until missiles are already flying.

In Trump’s second administration, military campaigns against alleged drug boats in the Caribbean and the continuing conflict with Iran have proceeded without congressional authorization.

Congress passed another War Powers Resolution concerning Iran, but a resolution without legal force or consequences is little more than strongly worded paperwork from lawmakers avoiding their constitutional duty.

That is no way to run a wartime railroad, regardless of which party controls the White House.

War is too consequential to become the unilateral project of one president, even when the military objective appears compelling or the target richly deserves punishment.

The response to 9/11 offers the proper model because Bush sought congressional approval and lawmakers publicly accepted responsibility.

Congress authorized force against those responsible for the attacks and separately approved military action against Iraq the following year.

The Afghanistan campaign against al Qaida and the Taliban followed both a just purpose and a constitutional process.

Even the Iraq invasion, despite its disputed intelligence and dubious justifications, placed responsibility on both elected branches rather than allowing Congress to hide behind presidential action.

Debate and delay are features of the system, not flaws dreamed up by timid politicians.

They force elected leaders and the American people to confront war’s costs before the first missile launches instead of offering explanations, appropriations, and excuses afterward.

The framers understood that no single person should decide when the republic goes to war.

On the twenty fifth anniversary of 9/11, Congress should remember its duty, reclaim its voice, and stop pretending that constitutional war powers are optional.

Butch Bracknell, the author of the original opinion, is a retired Marine Corps lawyer with a graduate degree in national security law from Harvard Law School.