The Constitution and War in the 21st Century

President-elect Donald Trump has again doubled down on the idea of taking military action against Panama and Greenland (Denmark), to achieve foreign policy aims:

Within a couple of weeks Donald Trump will be President of the United States, and his word will be the official policy of the United States government, so it is probably a good idea to pay attention to what he has to say now.

In addition, if I were still teaching National Security Decision Making (NSDM) as a member of the National Security Affairs (NSA) department of the Naval War College (NWC – boy, that’s a lot of acronyms!), it would be tempting to use the idea of using military force against Panama and Denmark to achieve foreign policy goals as a case study in national security decision making.  Here’s how that conversation might go:

Instructor: OK, so far, the President-elect has not backed away from the idea of using military force to take the Panama Canal away from Panama or gain territorial control – I think that is the idea – of Greenland. So, starting with the Panama Canal, how might this work? Anyone?

Student A: Sir?

Instructor: “Tony”

Student A:  Sir?

Instructor: Don't call me "sir," call me "Tony."

Instructor:

Other Students:Student Z: You’re always preaching to us about using “to pay for, to kill for, and to die for” as a rubric for determining what level of military force is appropriate for a given national security interest; shouldn’t we start there?

Instructor: Thank you for reminding me, although I’m not sure I would use the word “preach”![ii]  Yes, we certainly could start there, but I think if one is considering attacking a sovereign nation with the stated aim of seizing their territory, one has already decided it’s an interest worth dying for, because sovereign nations tend to object to such actions.  In any event, let’s set that aside for a minute – I’d like to get at what the Constitution might have to say about this.

Student Z: Well, I guess as Commander in Chief the President can take whatever military action he wants to protect U.S. interests, right?

Instructor: Class, what do you think? And two things I would like you to address: does the interest matter? And what power does the President have in committing the nation to war on his own authority?

Students: Yes! No way, the Constitution...  To defend the US against attack, sure... It depends...? Not to seize territory! Well, some have... The War Powers Resolution!

Instructor: Hang on, one at a time! D, we haven’t heard from you recently - what are your thoughts?

Student D: Well, the Constitution says Congress declares wars, but it also makes the President the Commander in Chief...

Instructor: Is that a contradiction?

Student A: No, I think the idea was that Congress would decide when we would go to war, and once that decision was made, the President would lead the military forces in prosecuting the war.

Instructor: It would have been nice if the Founding Fathers had spelled that out, wouldn't it?!? OK, let's say that was the intent - but even in the 18th century, and certainly today, threats to our national security can develop very quickly, too fast to convene Congress to debate a war resolution - shouldn't the President be able to respond to "obvious" threats to our national security?

Students: Yes! No! Maybe!

Instructor: OK, OK! I'm glad you all agree! Well, if you look at our history, Presidents have insisted, from the earliest days of the Republic, and often acted on, the premise that it is within their authority as the Commander in Chief of the armed forces to be able to respond as necessary to protect our national interests.  Does the Panama Canal case seem to fall into this category?

Student C: Well, I don’t think so – apparently the issue is the rates US flagged ships are paying to transit the Canal, and China’s operation of a couple of Panama’s ports. I don’t think that raises to the level of using military force, but it’s not my personal opinion that matters, it’s Congress’s.

Instructor: How so?

Student C: Well, the Constitution gives Congress the sole power to declare war; if the US is going to go to war with another country, I would think the President should at least try to convince Congress to declare war.[iii]

Instructor: OK, good. But what happens if the President goes to Congress, and Congress declines to declare war – what then? Does he have to live with that decision?

Student D: Well, Sir…

Instructor: Tony!

Student D: Uh, right – Tony – well, Tony, he could, but he might, as Commander in Chief, decide to just go ahead and take military action anyway…

Instructor: I don’t doubt you’re right, but it seems to me that would be a pretty bold act, especially since both chambers of Congress will be controlled by his party when he takes office. So, two things I would like you to address, starting with the military’s response: what is the operational chain of command, and how might uniformed members respond to an order to invade Panama given that Congress declined to declare war against Panama?

Student E: Sir, the…

Instructor:

Student E: …operational chain of command flows from the President or the Secretary of Defense to the Combatant Commander – in this case, to Admiral Alvin Holsey, Commander, U.S. Southern Command.

Instructor: OK – A, back to you: how might Admiral Holsey respond.

Student A: Well, Tony, …

Instructor: Yay!

Student A: …that’s hard to say. Admiral Holsey has taken an oath to “support and defend the Constitution,” but we identified before the contradiction of declaring war and commanding the troops – he could probably justify supporting the Constitution in a number of different ways! In this case, with Congress having specifically declined to declare war against Panama, it would seem to me that Admiral Holsey would be on firm ground to at least ask the President about using military force given that Congress is against the idea. But then again, he might decide, as the President clearly had, that as Commander in Chief the President had the authority to authorize the use of military force. Of course, if Admiral Holsey invades Panama, Congress might invoke the War Powers Resolution.[iv]

Instructor: Ah, the War Powers Resolution again! OK, how does that apply?

Student X: Well, “Tony,” given this scenario, it seems to me that the President already met the requirement to “consult with Congress before introducing United States Armed Forces into hostilities…” when he asked for a declaration of war…

Instructor: Good point! Go on…

Student X: The next requirement is for the President to report to Congress about the employment of the military, and I don’t see any reason why that and subsequent required reports wouldn’t happen…

Instructor: OK. So that’s it, the US is at war?

Student Y: Well, not exactly – the meat of the Resolution is in Section 5, subsections b) and c), which if you don’t mind, I’ll read:

(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

(c) Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

Student Y: To summarize, Congress’s real power lies in the purse: Congress could direct the President to remove the military forces and/or remove the operational funds required to pursue military operations…

Student Z:  But, Sir, do you think Congress would really take such a drastic step? And even if they did, they already told the President “no” once, do you think he would actually listen to them?

Instructor: It’s “Tony!”  And I said I was unpromotable, I didn’t say I couldn’t be court-martialed - save it for your Policy instructor! Ok, that’s the bell, we are (thankfully!) out of time! But I’d like you to think about the Greenland/Denmark case – specifically, how might NATO react if one NATO member attacks another…? Isn’t “an attack on one an attack on all” …?

Anthony Cowden is the Managing Director of Stari Consulting Services and co-author of Fighting the Fleet: Operational Art and Modern Fleet Combat, all royalties from which go to the Navy/Marine Corps Relief Society.

[i] https://www.reuters.com/world/trump-wont-rule-out-military-economic-action-he-seeks-control-panama-canal-2025-01-07/

[ii] Readers of this space would certainly agree with the “preach” characterization!

[iii] I choose to ignore the problematic and silly euphemism of “authorizing the use of military force”.

[iv] https://avalon.law.yale.edu/20th_century/warpower.asp