On a Friday in March, nearly 50 years ago, a young Joe Biden stood on the floor of the Senate and challenged the power of a president to unilaterally conduct a forever war. “Time and time again,” he said, “we members of Congress are repeatedly told by the press and presidents that we are incapable of making foreign policy decisions.” But Biden didn’t buy it. Two years earlier, Congress had helped push the United States toward leaving Vietnam. By his 1975 speech, the United States had already evacuated many of its remaining personnel, with a final order to leave coming a month later. Biden hinted at a dark message: If Congress hadn’t intervened, the United States might still be fighting.
That was the danger of a president with too much power.
On Sunday, Biden decided to launch airstrikes at Iranian-backed militias in Iraq and Syria. If that time near the end of a Vietnam War marked a rethinking of the limits of presidential war powers, the prevailing discourse has long since shifted in another direction. The reality is this: Presidents have nearly unfettered power to initiate conflict, Congress be damned. Controversy brewed among lawmakers over Biden’s decision to launch the airstrikes. But he cited his constitutional ability to defend US troops abroad and moved on. “I have that authority under Article II—and even those up on the Hill who are reluctant to acknowledge that have acknowledged that is the case,” he said Monday.
Some would argue Article II doesn’t allow an action like Biden took. But the confidence of his statement shows how ineffective national security law can be when characterizing things as seemingly obvious yet ultimately ill-defined as “self-defense” and “war.” If the White House is shameless, the United States can justify military action under any context. In other words, it can enact a war without ever declaring it.