Month: September 2025

Next year, the Supreme Court is expected to clarify the scope of birthright citizenship. In other words, the Court will determine who may, and who may not, claim to be American citizens by virtue of the Citizenship Clause of the Fourteenth Amendment.

The Citizenship Clause reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Thus, to qualify as a birthright citizen, a person must have been both (1) born or naturalized in the United States and (2) born “subject to the jurisdiction of” the United States. Disputes about the scope of the clause center on the meaning of “subject to the jurisdiction of.”

Problems with the Fourteenth Amendment

Congress proposed the Fourteenth Amendment in 1866, and state legislative ratification was declared complete on July 9, 1868. The amendment was designed primarily to protect newly freed slaves from hostile state governments. It has also been the basis for some of the Supreme Court’s most memorable, fair, and popular decisions. Some even hail it, along with the Thirteenth and Fifteenth Amendments, as the basis for a “Second Founding” (a characterization I consider overdrawn).

The value of the Fourteenth Amendment has made writers reluctant to criticize the measure’s text or its drafters. Candor compels, however, the conclusion that the Fourteenth Amendment is very poorly written.

Much evidence of poor drafting is in the results: Section 2, dealing with congressional apportionment, has proved unworkable. Section 3, the Disqualification Clause, is filled with uncertainties that fueled extensive litigation during the months leading to the 2024 presidential elections. Scholars are still debating the Privileges or Immunities Clause—not merely its specific applications but even its basic purpose. Scholars and jurists continue to debate the amendment’s Due Process Clause as well.

Thus, it is unsurprising that the scope of birthright citizenship also remains unsettled.

One reason for the difficulties in construing the Fourteenth Amendment is that, while the 1866 Civil Rights Act is often cited as an interpretive source for the amendment, the language of the amendment differs appreciably from that of its predecessor statute. One cannot dismiss the legal effect of those changes, as some have, simply because a senator or two thought (inaccurately) that they meant the same thing.

Another source of difficulty is that, unlike the framers of the original Constitution, the amendment’s drafters rarely relied on words and phrases with recoverable historical and legal meanings. Instead, they coined their own phrases (such as “equal protection of the laws”) or—as in the case of the amendment’s Privileges or Immunities Clause—referred to idiosyncratic definitions rather than established ones.

The most important source for the original meaning of a constitutional provision is usually the ratification record. And yet the Fourteenth Amendment’s state ratification records, to the extent that they are published at all, often are unhelpful—although the late James E. Bond has used them to show that ratification evidence contradicts the incorporation doctrine.

If you try to interpret the phrase “subject to the jurisdiction,” you encounter all these obstacles. This language differs from the corresponding phrase in the Civil Rights Act (“not subject to any foreign power, excluding Indians not taxed”). The traditional legal meaning of “subject to the jurisdiction” (that is, “within the territory governed by”) would render that phrase redundant, and the Senate debates confirm that a new, unprecedented definition was intended. But those debates are very unclear on what that new definition was.

The Senate Debates

Commentators on several sides of the birthright citizenship issue quote from the Senate debates to support their positions. They can do this, because the debates support several sides. Sometimes, even the same Senator is found supporting several sides.

To illustrate the point, let’s consider some comments not from opponents—who would be expected to issue conflicting interpretations—but exclusively from the amendment’s supporters:

• Jacob Howard (R.-Mich), the principal sponsor, stated in his introductory speech that “subject to the jurisdiction” excluded the children of foreigners born in the United States.
• But John Conness (R.-Cal.)—another supporter—expected the amendment to grant citizenship to the children of resident Chinese nationals. Timothy Howe (R.-Wis.) claimed the Fourteenth Amendment would admit to citizenship “all men … who are born and reared upon American soil”—thereby adding a requirement of being reared and deleting any exclusion of foreigners.
• Lyman Trumbull (R.-Ill.) contended that “subject to the jurisdiction thereof” meant subject to the complete jurisdiction thereof: “not subject to some foreign Power”… owing “allegiance solely to the United States.” Thus, he agreed with Senator Howard that the amendment would exclude the children of all foreigners. But on another occasion, he said it meant, “birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.” The latter statement seems to include the children of foreigners subject to US authority.
• In his initial speech, Senator Howard made no suggestion that tribal Indians in the territories were excluded by the phrase “subject to the jurisdiction”—even though they had been excluded by the Civil Rights Act. When challenged on the point, however, Howard claimed they were excluded. This reader gets the impression that he manufactured the exclusion for the moment.
• Senator Howard also averred that the language—which, he said, excluded children of all foreigners—was merely “declaratory of … the law of the land already.” But, as explained below, it was not.

These incidents only begin to describe the confusion that characterizes the debates over the Citizenship Clause.

Deducing Principles

Unfortunately for Supreme Court justices, the jumbled state of the historical records does not excuse them from interpreting the Constitution as best they can. In this case, specific drafter expectations differed. But we may be able to deduce some common principles, and if so, those principles will have to trump divergent expectations. And the drafting history does disclose principles accepted by most, if not all, of the participants.

First: Both the presumption against redundancy and the Senate debates tell us that “subject to the jurisdiction” imposes a requirement additional to being born within the country. A 2011 Time Magazine cover story opined, “The 14th Amendment … holds that if you’re physically born in the US or a US territory, you’re a citizen. Full stop.” We can be confident this assessment is wrong.

Second: Several senators, including the principal sponsor, acknowledged that “subject to the jurisdiction” excluded the children of all or some foreigners.

Third: Several senators said, without contradiction, that the amendment restored the law as it had existed prior to the Dred Scott decision.

Fourth: Several suggested, without specific contradiction, that “subject to the jurisdiction” was tied to the Anglo-American concept of allegiance. For example, Edgar Cowan (R.-Pa.) said, “It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power.” He affirmed the prerogative of states to evict people “who acknowledge no allegiance, either to the State or the General Government.” Similarly, Senator Trumbell declared that tribal Indians “are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.”

Supreme Court Precedent

Supreme Court precedent is broadly consistent with these principles. The Slaughterhouse Cases (1872) included dicta stating that “the phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Elk v. Wilkins (1882) adopted the allegiance rationale to endorse Senator Howard’s view that tribal Indians were not “subject to the jurisdiction”:

The main object of the opening sentence of the fourteenth amendment was to … put it beyond doubt that all persons … owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. … The evident meaning of these last words is … not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.

Although that language seems to exclude the children of all foreigners, United States v. Wong Kim Ark (1898) corrected course by ruling that legal foreign domiciliaries as well as citizens can pass citizenship to their children. In addition, the court imported wholesale the traditional principles of allegiance:

[The Constitution] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.

The fundamental principle of the common law with regard to English nationality was birth within the allegiance. … The principle embraced all persons born within the king’s allegiance, and subject to his protection. Such allegiance and protection were mutual … and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king’s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.

The Law of Allegiance

In an earlier essay for Law & Liberty and, along with co-author Andrew Hyman, in an article for the British Journal of American Legal Studies, I outlined the traditional rules defining when a person was in or out of allegiance. The rules were as follows:

Citizens were in allegiance. A foreign diplomat was in allegiance only to his own nation and not to the host country. Otherwise, a foreigner from a friendly nation (an “alien friend”) was in “local allegiance” to the host country, in addition to the superseding allegiance he owed his sovereign. A foreigner from a hostile nation could be in local allegiance to a host country if the host country granted a special dispensation. One who seriously broke the obligations of allegiance was guilty of treason.

A person without a dispensation and from a hostile nation was an “alien enemy” and not in allegiance to the host country. The host country might prosecute an alien enemy for other crimes, but not for treason. Any person who entered the host country illegally or otherwise rejected allegiance and was likewise an alien enemy. Despite the court’s suggestion in Wong Kim Ark, a foreigner need not be in enemy-occupied territory to qualify as an alien enemy.

Observe that nothing in the law of allegiance limited it to those foreigners who were permanent residents. Foreign merchants temporarily in England were routinely considered in local allegiance to the Crown.

Observe further that allegiance was a concept applicable to free people. It did not apply to slaves, who, like other “property,” were always “subject to the jurisdiction” of the prevailing government. In Somerset v. Stewart (1762)—the case in which Lord Mansfield ruled that there was no slavery in England—the former slave James Somerset was able to establish allegiance because under English law, he was free.

Because of the poor drafting of the Fourteenth Amendment, the conflicting statements among those who proposed it, and the lack of useful ratification history, there can be no perfect interpretation of the Citizenship Clause. But there is a best one: A child is born “subject to the jurisdiction” of the United States when his or her parents are in allegiance to the United States. That means they are either US citizens or non-diplomat foreigners from friendly countries—temporarily or permanently, but legally—in the United States.

In the eighteenth and nineteenth centuries, the war over war powers demonstrated a healthy, albeit messy, constitutional system. In both branches, there were battles about when and where the US should use its military and how large that military should be. These questions would shape deliberations between the executive and legislative branches for decades, with men in both branches attempting to assert their preferences, and they would claim those who disagreed did not have a proper understanding of the founding principles. Arguably, those who favored a larger military capable of helping the US become a great power tended to win out, even in the early years. Only a few decades after independence, they doubled the size of the US with the Louisiana Purchase in 1803, followed by the acquisition of the Floridas in 1819, the annexation of Texas in 1845, the acquisition of the Oregon territory in 1846, and finally seizing half of Mexico’s territory by the end of the war in 1848. Those who hoped for a larger military could point to the expansive territory and the two oceans as a justification for increasing the size of the military.

The desire to move across North America did not come exclusively from the executive branch. Voices in both branches wanted continental dominance, and they won out over those whose preference was for a small republic. Even in the nineteenth century, when the United States was considered isolationist, these acquisitions and the Mexican-American War showed a clear victory for those with grand ambitions for the United States and its place in the world.

During this time, we do not see presidential unilateralism. If a president wished to initiate a military operation, he would ask Congress for permission to purchase territory or start a war—in Jefferson’s case, he asked for forgiveness after a fait accompli. Congress, in turn, would engage in a meaningful debate about the merits of the action, and provide him with permission or deny it. Subsequently, if a war effort proved questionable or problematic, they would again debate the merits of the prosecution of the war and hold the executive accountable. During an operation, spending would increase, and a president would have more power. At the conclusion of the operation, the military would draw down, and Congress would return to its coequal status.

This changed with the Spanish-American War. President William McKinley assumed a great deal of power—at the expense of Congress—and military spending started ratcheting up. The healthy push and pull over the eighteenth and nineteenth centuries between the branches began eroding then continued to do so through WWI. The healthy balance never returned after WWII. The Cold War and the War on Terror then exacerbated an already problematic relationship. Congress did not have the incentives to reassert its coequal status. This is certainly problematic for the separation of powers and the health of the constitutional system; there is a bigger problem. Congress facilitated unilateral presidential decision-making when it comes to the military without much oversight from the people, the courts, or Congress. This lack of deliberation and accountability has led to the operationalization of bad policy. This policy creates new security threats rather than diminishing them, and we have seen decades without a coherent grand strategy. Despite mountains of evidence proving the need for a more assertive Congress, presidents continue to make the same kind of mistakes in military engagements, large and small.

World War I

World War I was a flash point in the balance of power between the branches, with Congress standing firm against a president encroaching on legislative powers. In the early days of the war, Congress and President Woodrow Wilson agreed that the US should stay neutral. The sinking of the passenger ship, Lusitania, in 1915 changed their thinking. At this point, Wilson felt compelled to bring the United States into the fight due to the immorality of the Germans. He followed the steps outlined in the Constitution and solidified by nineteenth-century norms: He produced a war message for Congress explaining that he had exhausted every diplomatic avenue available. He emphasized the inhumanity of the Germans and requested a declaration of war, which Congress then provided. In the declaration, it claimed that the Imperial German Government (not the people) was at war with the American Government and that the German government was the aggressor. As a consequence, “the President … is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial German Government; and to bring the conflict to a successful term.”

Congress told the president what he was authorized to do, what he could do to accomplish it, and the expected conclusion of the conflict. Until that conclusion, Congress accepted its responsibility to use its power of the purse to ensure a successful conclusion. We see in Wilson’s application to Congress and its declaration, coequal branches with different but interlocking responsibilities to each other and the people of the country.

As the American constitutional system allowed, during wartime, Wilson enjoyed more discretion and a greater ability to command. At the end of the war, a healthy rebalancing occurred. Wilson came to the Senate with the League of Nations Treaty and commanded them to pass it without revisions. Quite legitimately, the Senators claimed that if they signed the treaty, they would lose some of their Article I powers. Wilson attempted to go over their heads to the people, but this did not sway the Senators. They rejected it a second time.

World War II

The American response to WWII echoed their view of WWI. They wanted to remain out of another European war. Reflecting their will, Congress passed several neutrality acts. They did not see what President Franklin Roosevelt saw: the battle for a metanarrative. For him, the fascist governments would continue to expand unless liberal democracies fought back. He attempted to work around the will of the people as expressed through these laws.

As I noted in my book on the theory and history of US war powers, “it is shocking to see how far FDR and his lawyers pushed the concept of executive power in what should have been a balanced system, with the political branches working in tandem.” One such example was the “destroyers-for-bases” agreement, in which FDR provided warships to Britain in exchange for basing rights, all by executive agreement. At the time, eminent legal scholar Edward Corwin said that Attorney General Robert Jackson’s opinion justifying the action threatened all congressional authority and constituted a step toward “totalitarian” rule. Despite his efforts, members of Congress did not check him or take steps to either support or undo the destroyers for bases agreement.

The following year, on December 7, 1941, the Japanese attacked Hawaii and the Philippines. This was a proverbial breaking point for Congress. Roosevelt asked for a declaration and, like Wilson, explained that they had to resort to war. In turn, Congress produced a declaration using the same language used in WWI, which authorized and commanded the president to act. It told him what resources he had at his disposal, who he was fighting (the governments of the Axis powers), and what happened at the conclusion.

Cold War

After WWII, the United States entered a new era with the largest economy, one of the largest militaries, and a victor’s sense of righteousness. Unlike their allies in Europe, their nation and industries remained intact, making it the sole liberal democracy capable of defending that form of government. They accepted this role as an international police force. Perhaps curiously, Congress would increasingly recede into the background as more and more power accumulated into the hands of presidents. It is almost breathtaking to see how members of the Senate reacted to the United Nations treaty and the NATO treaty. In both instances, they did not stand up for their control over the declaration of war and other Article I powers—as Senators did after WWI. The emerging imbalance in wartime decision-making came very quickly. In 1950, the UN Security Council (UNSC) created a resolution calling for a police action in Korea. Truman circumvented Congress and justified sending 6.8 million American men and women to fight using the UNSC resolution as his legal justification. Congress did not stop him.

What explains this dramatic change? There are several major factors. First, there was a broad consensus on both sides of the Atlantic that the Europeans needed to demilitarize. It was a feature of NATO. As the first NATO Secretary General Lord Hastings Lionel Ismay quipped, it would “keep the Soviet Union out, the Americans in, and the Germans down.” Second, the Americans had created nuclear weapons. The Soviets were not far behind, successfully testing their own nuclear weapon in 1950. The destructive power of this new weapon led to questions about who would control it. There was a broad consensus that the president alone should wield it to ensure flexibility and nimbleness (there are still no restraints on presidential control). The third reason is closely related to the second. Once the Soviets also had nuclear weapons, Americans worried they would use them. The Soviets wanted communism to win out over liberal democracy, and they were ruthlessly spreading it. As Russians increased their weaponry, the Americans responded in kind. Both engaged in an arms race and maintained large militaries.

While all of these contributed to the increase in presidential unilateralism, the large standing military caused the most damage to the powers of the legislative branch. In essence, they had already given tacit permission to the president to exercise his discretion by passing a large military budget, year after year. With a standing military, the president did not have to explain his decisions to Congress. He could send the military anywhere in the world, for any reason, without any significant check on his discretion.

One of the worst examples of this power is the war in Vietnam. US involvement dates back to President Dwight Eisenhower, but the escalation of the war occurred under President Lyndon Johnson. During his administration, Johnson attempted to keep the war away from the public, quietly escalating month after month. Members of his administration convinced him that if they just sent more troops, they could overcome the threat from the Viet Cong. Instead, the United States was pulled into a war it could never win and used tactics that caused a great deal of suffering. Congress only authorized force long after US involvement began, and when it did, it gave the president broad authority to escalate the conflict and use his own discretion to determine what would constitute a successful conclusion. When the legislative branch became more aware of the circumstances and realized the impossibility of achieving a victory, they used the power of the purse to draw down troops. In 1973, during the Vietnam War, Congress passed the War Powers Act to try to constrain presidential unilateralism. While there has been some controversy about the act and about how presidents address it, there are rare examples of presidents ignoring it or failing to abide by it.

The War on Terror

The tragedy of 9/11 facilitated a great deal more presidential unilateralism and congressional abdication. Due to the shocking nature of the attack and the immense pain it caused, Americans and many around the world were psychologically primed to bring the fight to this stateless enemy. Problematically, unlike the Germans or the Japanese, with a stateless enemy, there is no return address. Terrorists existed in a variety of countries around the world.

In contrast to the WWI and WWII declarations, the 2001 Authorization for the Use of Military Force (AUMF) is remarkably vague. It says the president is:

authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.

The broad grant of power arguably shows congressional support. One could also argue, however, that this is Congress ceding its coequal status and allowing the president carte blanche to make decisions—putting even more power into presidential hands. Bush had complete control over how and when to use military force to carry out an ambiguous mission without a sunset clause or an objective that would indicate when the war concluded. Even the Gulf of Tonkin Resolution—which was hardly a good example of Congress ensuring accountability—had a sunset clause. When compared with earlier declarations of war, it is clear that Congress has turned towards ambiguity and away from clarity.

Armed with such sweeping authorization, Bush’s 2002 State of the Union announced that he could and would search for terrorists in any nation. If you were not with the US, you were against it, he claimed, leading many allies to feel bullied. He labeled North Korea, Iran, and Iraq, the “Axis of Evil,” giving many the impression that the US would intervene militarily in at least one, if not all three.

By the summer of 2002, the Bush administration started beating the drum for war in Iraq. By the fall, Bush asked Congress for an authorization. Once again, we see that Congress failed to perform its duty. After listing the problems caused by Iraqi leader Saddam Hussein and the attempts by the UNSC to stop him, Congress authorized the president to:

Use the Armed Forces of the United States as he determines to be necessary and appropriate in order to 1) defend the national security of the United States against the continuing threat posed by Iraq; and 2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

The ambiguity and the grant of power are staggering. Congress allowed the president to decide what was necessary and appropriate when it comes to the use of force. Furthermore, the president is defending “national security.” What is within the scope of national security? With another carte blanche, Bush and members of his administration convinced themselves the American military could overwhelm Hussein’s forces quickly—as they arguably had in 1991—and they would be “greeted as liberators.” He launched the invasion in March of 2003.

The rest of the decade would see a civil war in Iraq, followed by a surge authorized, this time, by an opposition Congress, Democrats having gained the majority in the legislature in 2006, partly due to their campaign promise to end the unpopular and disastrous war. These decisions created an appetite among the American people for a dramatic change. Tapping into this unique moment, Senator Barack Obama entered the race promising hope and change. Domestically, he had many accomplishments that pleased Democrats. In the realm of foreign policy, however, he essentially continued Bush-era policy, albeit on a smaller scale and with more circumspect rhetoric.

In his campaign, Obama labeled the war in Afghanistan the “good war” and Iraq the “dumb war.” Feeling pressure from the military and the public to show strength, he was pressured into a troop surge in Afghanistan. He claimed the military would achieve success if he had these additional troops. Success, however, was ambiguous. Did it just involve degrading al Qaeda, or did it involve degrading the Taliban as well? He suggested both in a speech at Westpoint in 2009, announcing the surge. Congress did not scrutinize any of these issues. They simply provided him with the funding without reviewing whether 30,000 more troops would produce the desired result (let alone what the desired result was). This war would quietly continue until 2021. At this point, Biden planned to withdraw completely. They had accomplished what they came to do—degrade al Qaeda—and it was time to leave. Americans would leave by the end of August 2021. Due to the weakness and corruption of the Afghan government, the Taliban swept across the country and took control of Kabul on August 15.

The Arab Spring

In the spring of 2011, after decades of corrupt and brutal leaders, citizens of the Middle East and North Africa rose up and demanded change. There were crackdowns in many countries, but the two most salient ones for US foreign policy were in Libya and Syria. In Libya, Muamar Qaddafi openly expressed his violent intentions, leading the Arab League and the African League to abandon him, and they implored NATO to take action. Within a month of the violence, Obama ordered the American military to carry out air strikes in Libya as he explained in a letter addressed to Congress. Without even suggesting that he has to obtain permission from Congress, he explained the “regional and international threat” posed by Qaddafi’s actions. They had to avoid “wider instability in the Middle East” and the civil war in Libya was a threat to “the national security interests of the United States.” This level of unilateralism would shock the Founders and presidents well into the twentieth century.

Simultaneously, the Syrian leader, Bashar al-Assad, cracked down on his people. Unlike Muamar Qaddafi, however, he had close allies in Iran and Russia. NATO decided not to act, allowing a civil war to draw out for years and a refugee crisis to destabilize countries near and far. Besides these horrible consequences, the anarchy allowed for the rise of the Islamic State. Starting in 2013, this group inflicted brutal violence. In the summer of 2014, they took the dam outside of Mosul after the Iraqi military (that the US had trained) fled. Without asking permission from Congress, Obama immediately deployed US military forces to Iraq to address the very real threat.

Once again, Congress shirked its responsibility, and the president acted unilaterally to address an issue. In an attempt to find legal justification for his action, Obama reached back to the 2001 AUMF to claim that his actions against ISIS are legally sanctioned by that document and he does not need any new legislation. Congress made some attempts to revise the 2001 AUMF or create a sunset clause, but they failed. While these operations succeeded in driving ISIS off the land they claimed, the region remains unstable.

The Contemporary Landscape

Unlike his two predecessors, President Donald Trump did not start any new military operations in his first term that required a congressional response. He continued the war in Afghanistan on a low simmer, but he generally left military affairs to the generals, and they did not find any “monsters to destroy.” That doesn’t necessarily mark a turn away from presidential unilateralism, however.

On January 3, 2020, without even alerting any members of Congress, Trump ordered a lethal drone strike against the Commander of the Quds Force, Qassem Suleimani. This decision sent shock waves around the world and could have easily caused war between the US and Iran. Yet in a precedent-setting move, unlike previous presidents of both parties, he only asked executive branch lawyers to produce a justification well after the fact. The strike clearly violated international and domestic law, to say nothing of norms. Yet Congress did not rise to the occasion to restrain presidential unilateralism.

Today, in the second Trump term, the war in Ukraine persists and shows little sign of ending. There is concern that the Chinese may invade Taiwan, especially if Russia succeeds in Ukraine. War still rages between Hamas and Israel, and there is a growing humanitarian crisis in Gaza. Iranian nuclear program likely continues in some capacity despite the US strike in June, undertaken without congressional approval or input. Relations between the United States and its closest allies remain tense. In other eras, there were serious deliberations between the branches and within the branches about the direction of US foreign policy. There were still mistakes and lapses in judgment, to be sure, but all was not exclusively determined by one individual. Over the last 20 years, Congress has made only limited and unsuccessful attempts to create laws that would restrict presidential unilateralism or restrain the use of military force. The Islamic State and Obama’s use of the 2001 and 2002 AUMFs to justify his actions caused many to worry that Congress had sanctioned a forever war. In this very complicated world, the decisions about when and where the US military will engage in operations large and small rest in the hands of one man.

When looking at the Constitution and the debate in the Constitutional Convention, it is clear that the power of the legislative branch concerned the Founders. Comparatively, the executive seemed weak and required ways to ensure the administration could defend itself against legislative encroachment. Over time, the executive branch has managed to draw power into its branch at the expense of legislative power. We do not see “ambition … made to counteract ambition.” Instead, we see a constantly encroaching executive and a supine Congress. As a consequence, the president essentially has the authority to initiate any military operation, anywhere in the world, for any reason. The lack of oversight leads to questionable decisions, from the war in Iraq to the operation in Libya to the lethal drone strike against Qassem Soleimani. Without scrutiny and accountability, presidents are going to follow their own impulses and interests when making decisions that have consequences for the United States and the world. Without a healthy constitutional system where another branch checks the worst impulses of the executive, the US will continue to see questionable decision-making from an unchecked executive branch.