Sen. Mike Lee: Congress—Not the President—Has Constitutional Power to Authorize Offensive Military Action

By Terence P. Jeffrey | March 9, 2020 | 3:06pm EDT
Sen. Mike Lee of Utah (Screen Capture)
Sen. Mike Lee of Utah (Screen Capture)

( - Sen. Mike Lee (R.-Utah) explained in an interview with that the Constitution gives Congress, not the president, the power to authorize offensive military action.

“Any sustained offensive military operation would require congressional authorization,” Lee said.

By contrast, Lee said that the president does have the constitutional power to repel attacks without prior authorization from Congress and that President Donald Trump’s decision to take out Iranian General Qassem Soleimani fit within that constitutional power of the Executive.

“The president does have the authority to repel attacks and defend us from an actual or imminent attack,” Lee said. “The president had the authority to kill General Soleimani. This occurred just a couple of days following an attack on a U.S compound in the Middle East and it occurred a couple of day before they believe other attacks were about to occur.”

Lee made these observations in an interview with on the constitutional war power. Here is a transcript of that interview:

Terry Jeffrey: “Hi, and welcome to this edition of ‘Online with Terry Jeffery.’ Our guest today is Republican senator Mike Lee of Utah. Senator Lee is a member of the Judiciary Committee and we’re going to talk to him today about the constitutional war power.

“Senator, I want to quick take you back to Friday, August 17, 1787. The Framers of the Constitution are meeting in what is now called Independence Hall on that day to discuss the war power. The specific line in the draft of the Constitution said Congress, shall have the power ‘to make war,’ and Charles Pinckney of South Carolina first said: I think we should give that power to the Senate. And Pierce Butler also of South Carolina said: No, we should give it to the President. And Elbridge Gerry and James Madison, according to Madison’s notes, immediately said no, and they offered an amendment that said change ‘make’ to ‘declare’ leaving to the president the power—‘leaving the executive the power to repel sudden attacks.’ And to jump to the chase, George Mason agreed with that, they voted on it, and the language ‘to make war’ was changed ‘to declare war’ and in both Mason’s, Elbridge Gerry’s, and Madison’s view, leaving to the president the power to repel sudden attacks. Is it correct to understand that the Framers intended to give the power of initiating offensive military action to Congress and not the president?”

Sen. Mike Lee: “Yes, that was their decision and that decision is born out in the constitutional text. There’s a line of precedent going all the way back to 1791. Remember, between 1791 and 1794 there were a series of attacks from the Miami and Wabash Indians north of the Ohio River. President Washington, drawing on the same logic and sequence of events that you described, acknowledged that there is a difference between offensive and defensive action and that for any kind of sustained offensive action you have to have a declaration of war. If, on the other hand, you’re simply repelling an attack and it’s in real time, that’s consistent with a natural outgrowth of the president’s inherent power as commander-in-chief under Article 2.”

Jeffrey: “And, of course, George Washington presided at the constitutional convention. So, he was sitting there in the room when Elbridge Gerry and James Madison offered their language—”

Lee: “Yes.”

Jeffrey: “--and said it’s to repel a sudden attack. He had firsthand knowledge of that. And, as you say, for example, Henry Knox, who in 1792, was Secretary of War for Washington, when Governor Moultry—Governor William Blount, excuse me, of the Southwest Territory that is now Tennessee, wanted the authority to take action against some Native American tribes that he thought were taking military action against them, Knox said ‘no’ because the president had not gotten the authority from Congress.”

Lee: “Yes.”

Jeffrey: “And has that changed since then? Is there anything in the Constitution that has changed that dynamic?”

Lee: “No, the Constitution hasn’t changed. We have not adopted any amendment that would alter that understanding. In fact, we still draw on those same principles, making the historical events that you described and the events early in George Washington’s administration as well as the explanation provided by Alexander Hamilton in Federalist 69, still relevant today--as relevant as they ever have been. And there’s nothing about the change in technology or developments in the way we fight war that alters that analysis. Sure, it introduces new nuances, but none of those things are rendered obsolete or constitutionally insignificant.”

Jeffrey: “Now, you jump ahead another eight years from 1792 to 1800 and the Supreme Court heard a case called Bas v Tingy. And the issue there was that a public vessel seized back from the French, a U.S commercial ship, and under the law at the time, given the limited conflict that was taking place between the United States and France, the owner of that ship was required to pay 50 percent of the value of the ship to the people who seized it back. He brought it all the way to the Supreme Court and Justice Samuel Chase, who was a signer of the Declaration of Independence, but who served then on the Supreme Court, wrote: ‘Congress is empowered to declare a general war, or Congress may wage a limited war; limited in place, in objects, and in time. … What, then, is the nature of the contest subsisting between America and France? In my judgment, it is a limited, partial, war. Congress has not declared war in general terms; but Congress has authorized hostilities on the high seas by certain persons in certain cases.’

“Is it your understanding that Chase was right about the Constitution? That it gave Congress the power to give the executive the authority to have very limited use of force in a very specific and prescribed way?”

Lee: “Yeah, I don’t want to speak authoritatively on that issue without reading it. I think they might have been referring to letters of marque and reprisal that had been issued. That is itself another independent, freestanding power that Congress has to authorize privateering, which is itself sort of a mini-war.”

Jeffrey: “Right, okay. And, of course, marque and reprisal are part of the war power of Congress, but do you believe that Congress in its power to authorize the executive to engage in offensive military activity can prescribe and define and limit that activity?”

Lee: “Yes.”

Jeffrey: “Yes.”

Lee: “Absolutely. Look, the greater power to declare war or alternatively to grant a letter of marque and reprisal, necessarily encompasses the narrower power to define the terms of the war or letter of marque and reprisal at issue. There’s every reason to believe that Congress has that power, and in fact it’s also a natural outgrowth of the spending power that Congress has, to decide whether, to what extent, in what way we’re going to pay for this or that military campaign.”

Jeffrey: “And, so now we’ve come forward all the way into this century and in 2011 President Barack Obama got the United Nation Security Council to pass a resolution authorizing the use of force to intervene in the Libyan civil war. And he in fact used U.S military force in the Libyan civil war. He told the nation he was doing it with the ‘writ of the international community.’ Was it a constitutional act for President Obama to intervene in the Libya’s civil war using the United Nations as his justification?”

Lee: “No, and its especially important there to remember that the minute you acknowledge that we’re undertaking an offensive, sustained military campaign of any sort--as I think we are, the minute were supporting an offensive measure, whether it’s as a co-belligerent or whether we’re acting alone, to destabilize the incumbent government of a foreign country on that country's soil--we have crossed the threshold into war.

“That doesn’t mean that there is nothing else outside of that definition that would amount to war, but I think that crosses the threshold into war. The minute you do that, you don’t, you can’t, circumvent Congress’s Article 1 Section 8 authority to declare that war and the president’s lack of authority to declare it unilaterally, simply by saying: Well, it’s ok, because we got the approval of the Arab League. Or: It’s ok, we’ve got the approval of the United Nations. It was curious in that case, I raised about that because he hadn’t gotten authorization from Congress. He claimed among other things that there wasn’t time. Well, he had time to go to the United Nations. He had time to go to the Arab Counsel, and so why couldn’t he have gone to Congress?”

Jeffrey: “This is one of the most profound things a president can do--take the United States into a military conflict.”

Lee: “That’s right. That’s right. The Arab League and the U.N can’t do that regardless of any treaty that we might have. A treaty or an arrangement with a foreign entity, or a multi-national group of entities, doesn’t and can’t supersede the Constitution.”

Jeffrey: “He’s literally saying the government of the People’s Republic of China has a say in whether the United States goes to war.”

Lee: “Right, no more them than the American Kennel Club. Or your local PTA.”

Jeffrey: “I think I’d prefer the Kennel Club.”

Lee: “Yeah, the Kennel Club might be a little bit more inclined to follow the Constitution.”

Jeffrey: “Okay, 19 years ago, we had the horrendous, evil terrorist attacks by al-Qaeda here in the United States on 9/11 and very shortly thereafter that the Congress did authorize the use of military force to go after those people who were responsible for those attacks or who collaborated in some way. Nineteen years later we still have troops on the ground in Afghanistan. Is the war that was authorized by that AUMF back in 2001 is it still legitimate?”

Lee: “It’s still authorized. It’s never been rescinded. In my view, that is a war that has lasted too long. It’s time for us to bring our people home. Look, I have a daughter who was a baby, an infant, on 9/11. She’s in college now. That war has been underway throughout her entire lifetime. Nonetheless, the authorization is still in place and so it’s not constitutionally infirm. It might be an unwise war to fight, but it at least has been authorized.”

Jeffrey: “To round this up, let’s go to Iran. Does the president have the power to initiate a war with Iran?”

Lee: “No. The president does have the authority to repel attacks and defend us from an actual or imminent attack. The president had the authority to kill General Soleimani. This occurred just a couple of days following an attack on a U.S compound in the Middle East and it occurred a couple of day before they believe other attacks were about to occur.”

Jeffrey: “So, taking out Soleimani was a good modern example of the president using his power to repel sudden attacks?”

Lee: "That’s right. That’s right. It was defensive in nature, not offensive, and it was momentary and in direct response to an attack rather than a sustained offensive military engagement.”

Jeffery: “And for the president to initiate military action against the Iranian homeland would not be constitutionally correct?”

Lee: “Any sustained offensive military operation would require congressional authorization.”

Jeffrey: "Senator Lee, thank you very much."

Lee: "Thank you."



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