Congress Needs To Take Back Its War Powers From The President

Congress Needs To Take Back Its War Powers From The President

The Federalist - Friday June 16, 2017

by Daniel DePetris

While everybody in Washington focused on the fallout from former FBI Director James Comey’s congressional testimony, U.S. Special Operations Forces (SOF) were busy in Somalia: raiding houses, supporting local military forces, and launching air strikes. From the African countryside and the dense environs of Mosul and Raqqa, to the mountainous terrain of eastern Afghanistan, America’s SOF are conducting near-simultaneous operations around the globe—at the constant risk of losing their lives in the process.

Somalia, Iraq, Syria, and Afghanistan are entirely different countries with unique sectarian and ethnic compositions. But they all have one thing in common: the United States is waging military action in each one under the same statutory authority.

For defense hawks, the 2001 Authorization for the Use of Military Force (AUMF), passed through Congress and signed by President George W. Bush a week after the 9/11 attacks with only a few hours of debate, is the legal gift that keeps on giving.

The 2001 Authorization Has Created An Underground War

Sen. Jeff Flake (R-Ariz.) had it right when he said that he had no clue that the 2001 AUMF would be expanded until its original meaning was rendered moot. “When I voted in 2001 to authorize military force against the perpetrators of the September 11 attacks,” the Arizona senator said, “I had no idea I would be authorizing armed conflict for more than 15 years and counting.”

And yet, nearly 16 years later, a war resolution that was designed to combat the terrorist group behind 9/11 has transformed into a carte blanche to fight every Sunni jihadist group on the face of the earth. All the executive branch needs to do is provide a decent enough case that the terrorist group being targeted is connected in some way, shape, or form to al Qaeda or the Islamic State.

The executive branch has been incredibly successful in convincing members of Congress to buy into that logic—knowing full well that the actual text of the 2001 resolution is quite restrictive. The George W. Bush, Barack Obama, and Donald Trump administrations have all taken advantage of their constitutional authority as Commanders-in-Chief to increase their war powers to the detriment of every other branch of government.

Congress Can Stop This Overreach

Congress, of course, is well within its right to stop this unilateral war-making authority, either by cutting off appropriations or by drafting an entirely new and more targeted AUMF to replace the old version. Both parties’ leadership, however, haven’t taken that opportunity. Many members do not want to infringe upon what they believe is the constitutional right of the president to prosecute military action as he sees fit during a time of war. Others believe that a war debate would be pointless right now, when intense partisanship morphs every policy debate into a black-and-white contest between Republicans and Democrats. Still others are so frightened to make a controversial war vote, they’d rather just let the status-quo prevail, no questions asked.

Unfortunately for the latter camp, this isn’t how America’s constitutional system is meant to work. The Founders of the Republic wanted both policymaking branches to weigh in before U.S. soldiers were deployed for combat. If the Founders were still alive today, they’d look at the entire system with disgust, angry that the branches of government that are designed to be equal and independent are behaving in a way that is anything but.

We Need To Right Our Skewed Balance Of Powers

Fortunately, conservative Republican lawmakers are teaming up with progressive Democrats and begging the congressional leadership to schedule a debate on the multiple wars that this country is fighting. There are currently six draft AUMF’s that have been filed, including a bipartisan measure by Sens. Flake and Tim Kaine (D-Va.) that would assert Congress’ authority to disapprove of the president’s expansion of the war in other countries and against groups operating outside the Al-Qaeda and ISIS orbit. Sen. Bob Corker (R-Tenn.), the Chairman of the Foreign Relations Committee—the same committee with jurisdiction over the AUMF drafting process—has even suggested that senators could get to work on Kaine and Flake’s legislation when they return from their summer recess.

For those who consider the Constitution an obligatory document rather than a suggested blueprint, one only hopes that Corker will make good on his words to schedule a mark-up in his committee.

The United States remains a nation at war, with a passive Congress willing to cede even more power to an ever-assertive executive. The balance of power between the legislative and executive branches has been out of whack for far too long. If America’s elected representatives don’t address that imbalance this year, when will they?

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