A former national security official in President Donald Trump's first administration was caught making false claims about the U.S. Constitution when speaking to a commentator and columnist.
"Congress does not have a constitutional role in the declaration of war. Congress has a role in cutting off funds for wars, which it has threatened to do. And the president doesn’t have to get permission," Nadia Schadlow, who previously served as a deputy national security adviser, told The New York Times' Ezra Klein. "But yes, you can debate, you can decide. That’s his choice in how he wants to do it."
Klein read Article I, Section 8, which outlines what "The Congress shall have Power To do." Clause 11 says that among those powers is "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."
It continues in other similar clauses, "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress[.]"
Schadlow claimed that Congress has the power to declare war but that the president doesn't need to, since he deploys "military force abroad."
"There are arguments by constitutional lawyers — which I’m not — like Robert Turner and John Yoo, who argue that the issue has to do with the term 'declaration' and what was meant by 'declare' versus the president’s ability to deploy U.S. forces around the world, which U.S. presidents have done, like, 200 times, depending on when you start looking — hundreds, at least dozens and dozens and dozens of times — without a declaration of war," she said.
"The issue is more: Does the president have to go to Congress every time he deploys U.S. forces? And the debate is about what constitutes a 'declaration' of war versus a deployment of U.S. troops or the use of U.S. military force abroad," she added.
At an earlier point in the discussion, she said that "every president since 1973 has said the War Powers Act was unconstitutional. Every single president."
That isn't entirely accurate either. For example, when President Barack Obama bombed Libya in 2011, he wrote in a letter to Congress before the 90-day deadline outlined in the War Powers Act because NATO was in charge and no U.S. troops were on the ground. Obama's team even went so far as to say that they weren't opposing the law.
"We are in no way putting into question the constitutionality of the War Powers resolution," said Ben Rhodes, then-deputy national security adviser, when speaking to reporters.
When former President Bill Clinton began the bombing campaign in Kosovo, Republican Rep. Tom Campbell (Calif.) went to court with some members of Congress, saying he violated the 1973 law. The U.S. Appeals Court dismissed it on the technicality that Congress didn't have standing because it couldn't identify any individual injury. He was also told that only 31 members of Congress sued over the matter, rather than it being a suit from all of Congress. The U.S. Supreme Court refused to hear the case.
Schadlow claimed that Congress only has the power of the purse, meaning the only legal recourse would be for Congress to cut funding to any operations in Iran. The political problem is that Congress rarely wants to cut funding to a region once troops are on the ground.
"The imagined version of John Yoo is somehow not worse than the extant version," said Maryland lawyer Joe Dudek. He'd posted the excerpt to BlueSky, arguing, "This woman has a Ph.D., but she couldn't be asked to read the Constitution’s ~4,500 words."
"John Yoo had a book in the 2010's making exactly this argument, if memory serves, where the President could commit the nation to war and Congress' power of the purse was the check on this. It's very much John Yoo doing John Yoo stuff," commented lawyer Don Dechert.
"Well, sure, my point is exactly that she is appealing to a questionable authority," Bernick followed up. "And that only after being called out for something that is just plainly wrong and even Yoo wouldn’t endorse."
University of Washington School of Law Professor David Ziff replied, "Congress's power is like Michael Scott's power in The Office. They are constitutionally empowered to walk into the chamber and yell 'War!' but it will have no legal or practical effect."
