Ultimately, says Glennon, “the precedent that [Bush] created was that he went to war with congressional approval. It’s not the precedent of a president running off as a rogue elephant, it’s not the precedent of a president thumbing his nose at Congress, it’s not the image of a Clint Eastwood tough guy. It’s the image of a president who is complying with the intent of the framers of the United States Constitution.”
The constitutional war powers issue surfaced again seven years later, when President Bill Clinton went ahead with NATO airstrikes against Serbs in Kosovo in the spring of 1999 after trying and failing to achieve full Congressional approval. The Senate passed a non-binding authorization of force on March 23, 1999, after which the bombing immediately commenced – before the House had a chance to vote on it. When the House finally took up the legislation a month later, the resolution failed in a rare tie vote.
"The House did vote against engagement in Kosovo, and Bill Clinton kept fighting anyway,” criticized Republican representative Peter King after the conflict. “He had bombing missions being carried in Kosovo after the House of Representatives voted against him taking action."
In Glennon’s view, Clinton’s bypassing of the House in authorizing the Kosovo airstrikes is a clear example of the kind of executive overreach that Bush eventually decided to avoid. “The Framers gave Congress the power to decide for war or peace for a reason: it’s too risky to place that decision in the hands of only one person,” he says. “Before the first Gulf War, President Bush honored the Framers’ intent; in bombing Yugoslavia, Clinton did not.”
Precedents for war-making powers swung in Congress’s favor when George W. Bush declared war in Iraq in March 2003. Following in his father’s footsteps, Bush 43 also sought congressional authorization but again considered going alone, again on the advice of Dick Cheney, now Vice President. The October 2002 resolution received a resounding bicameral majority on October 3, 2002. “It was a gamble, but it was a prudent gamble,” says Riley. “I think in that instance, again because of that post-Cold War environment, it made sense for him to go back to Congress.”
More recently, President Trump’s decision to respond to an alleged Syrian chemical weapons attack with an airstrike that lacked congressional authorization has drawn sharp constitutional criticism from members of Congress. “President Trump’s strikes are illegal. He does not have authorization to take military action against Syria,” said Senator Chris Murphy, a Connecticut Democrat. “What restrains Trump from launching an attack on North Korea without getting congressional authorization if he gets away with this attack on Syria?”
Constitutionally, Glennon sees a strong connection between Congress’s outrage over Trump’s unilateral military action and their initial concern that Bush wouldn’t consult them about the Gulf War. “Fundamentally, the arguments are parallel,” he says. “The basic argument is that if the President wishes to take military action abroad, that creates significant risks for the nation as a whole, he’s required to get congressional approval unless it’s an emergency.”