ROADMAP FOR RENEWAL 
Strengthen Congress’s Capacity to Fulfill its Constitutional Role 
 
II. Ensure constitutional checks on war powers to prevent lawless wars 
 
Our Constitution divides warmaking powers between Congress and the President. The 
Founders created this shared authority and responsibility so that no one person could 
commit the nation to war, and so that the United States would not enter into war without 
support of the people. The Constitution thus names the President Commander in Chief with 
authority to carry out military action, but grants Congress​—​and only Congress​—​the power 
to declare war. Congress also can curtail the use of force by refusing to fund it.   
 
Yet over the last several decades, Congress’s exercise of its constitutional authority has 
waned to the point of near nonexistence. Over that period, occupants of the White House 
have increasingly viewed their power to use military force as unilateral. In order to prevent 
lawless wars and reckless exercise of the vast military power entrusted to the President, 
Congress must restore constitutional balance to the process by which the United States 
decides to use force abroad. 
 
To do this, Congress must: 
● Clarify which wars are authorized; 
● Reduce the risk of unilateral nuclear war; and 
● Shift the balance of warmaking power back to Congress. 
 
The Problem 
 
Going to war is one of the most consequential actions taken by a nation: it is a life-or-death 
decision; it requires significant expenditure of resources; and it impacts a country’s short- 
and long-term international standing. ​No action of our government carries greater weight 
than directing our military against a new adversary. ​Yet from the Korean and Vietnam 
Wars a generation ago, to airstrikes in the former Yugoslavia in the 90s, to military action 
against the Gaddafi regime in Libya under President Obama, presidential decision-making 
about the use of force has become increasingly unconstrained by Congress. 
 
In 2017, the Trump Administration launched missile strikes against Syria without 
authorization from ​Congress​, without UN support, and without explaining why unilateral 
force was legal. Despite pressure from Protect Democracy through a FOIA lawsuit and 
requests from Congress, the Administration withheld documents outlining the legal basis 
for that military action. (Learn more about Protect Democracy’s litigation and advocacy 
work on legal authority for use of force ​here​).1 Following pressure from the litigation and 
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Protect Democracy, ​Release the Memo: Our Lawsuit to Obtain The Secret Memo Laying out the President 
Trump’s View of His War-making Authority​. Available at ​https://protectdemocracy.org/syria-lawsuit/​.  

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 some individual Senators, when the Administration again struck Syria in 
2018, it made its legal analysis public​—​in a ​memorandum​ that expressed a breathtakingly 
broad view of when the President can decide, on his own, to commit U.S. troops and 
resources in new theatres and against new adversaries.2  
 
The Executive Branch’s asserted authority to engage the military in acts of war without 
consent from or explanation to Congress, our allies, or the American people, reduces to 
three core problems:   
 
The American people don’t know the scope of military actions that Congress has authorized, 
leaving the Executive branch with enormous flexibility to engage our armed forces without 
political accountability.​ We see this ambiguity in our military engagement in the Middle 
East, including activity in Syria, mentioned above; operations in Niger that left four 
American service members dead in October 2017; ongoing and ill-defined support of 
Saudi-led forces in the Yemeni civil war, including deployment of green berets; and the 
fight against ISIL, a militant proto-state based in Iraq and Syria, which both Presidents 
Obama and Trump justified by reference to 2001 and 2002 AUMFs targeting Al Qaeda, 
despite Al Qaeda’s having disavowed any association with ISIL. Neither Congress nor the 
public has a clear understanding of what limits the Executive Branch sees on its scope of 
authority to use force. 
 
An autocratic or unstable president could launch a nuclear attack​—​or an attack that could 
prompt a nuclear response​—​leading to mass devastation with little to no political 
deliberation.​ President Trump has, on more than one occasion, threatened both North 
Korea and Iran with nuclear weapons, the use of which could lead to catastrophic 
consequences on a global scale. In the context of the Executive Branch’s broad views of the 
President’s authority to use force, and outdated protocols covering the use of nuclear 
weapons, which date from the 1970s, the threat of one person leading us into a horrific 
nuclear war is far too great. 
 
We’ve upended a delicately balanced constitutional protection against wanton spilling of 
American blood.​ Congress is supposed to declare war, the President is supposed to carry it 
out, and Congress should use its purse strings and oversight powers if the President 
exceeds the warmaking authority Congress has granted. Yet Congress has become all too 
passive, while Presidents have increasingly assumed the power to direct the use of force 
without the full support, or sometimes even the knowledge, of the American people. In a 
democracy, its critical for the public to be engaged in these decisions, as the weight of war 
ultimately falls on the members of the public who serve and their families and 
communities. Our Constitution sets up a system where no one person can take us to 

​O.L.C. Mem. Op., ​April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities​ (May 31, 2018), Available 
at ​https://www.justice.gov/olc/opinion/file/1067551/download​. 
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 war​—​it’s time to restore the balance so that the public, through their 
representatives in Congress, gets a say in these decisions. 
 
Proposed Solutions 
 
Congress must reassert its constitutional role in warmaking and provide a check on lawless 
or unauthorized wars by: 
 
Clarifying which wars are authorized 
 
● Congress should repeal AUMFs in place since 2001 and 2002 and conduct oversight 
regarding the Executive’s view of what military activity was pursued pursuant to 
those authorizations.  
● Congress should replace the AUMFs with a new resolution outlining clearly what 
military activity Congress has and has not authorized, including safeguards against 
endless wars.   
● Congress should pass legislation requiring Executive branch disclosure of all legal 
opinions on the use of force in particular theatres and against specific adversaries 
and, at least to select Members or Committees, all military action undertaken 
pursuant to those powers. 
 
Reducing the risk of unilateral nuclear war 
 
● Congress should modernize the nation’s nuclear protocols, including requirements 
that any nuclear strike order be verified as coming from the President and certified 
as legal and appropriate by other Executive branch officials, such as the Attorney 
General and Secretary of Defense. Congress should assess whether these 
certifications should include consideration of non-nuclear military action, or its 
infeasibility. 
● Congress should ensure that nuclear protocols address not just first-strike use of 
nuclear weapons, but also uses of force against nuclear-armed adversaries that are 
likely to provoke a defensive nuclear strike, and should consider whether and how 
Congress must be consulted before the Executive branch declares an offensive or 
defensive nuclear strike “imminent.” 
 
Shifting proper balance of warmaking authority back to Congress 
 
● Congress should establish a commission that will assess how this constitutional 
imbalance developed and propose ways to restore it, including revisions to the War 
Powers Act effecting a clearer bar on warmaking launched unilaterally by the 
President without the consent of Congress. 
● Congress should issue a resolution reasserting its constitutional role and declaring 
that the Executive branch cannot make unilateral decisions about initiating military 
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 force but must consult Congress as a coequal branch and as the branch 
most responsive to the will of the American people. 

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