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Will Congress Finally Reassert Its War Powers?

For the first time in decades, new legislation aims to curtail presidential prerogatives.
Illustration by Michael Hogue

For over a decade and a half, the U.S. Congress has been missing in action on matters of war and peace. This isn’t a statement of conjecture or one devoid of fact. All one needs to do is take a look at recent history. The legislative branch hasn’t passed an authorization for the use of military force (AUMF) since 2002, when Iraq’s Saddam Hussein was in the crosshairs.

In continuing to fight the War on Terror, the U.S. government is still operating under another 2001 AUMF to fight an alphabet soup of terrorist groups around the world, including an organization, the Islamic State, that didn’t even exist when the resolution was passed. This is categorized by Congress as an unfortunate public-relations scenario rather than an alarming constitutional oversight. Indeed, if George Washington suddenly came back to life and was thrust into the year 2017, it wouldn’t be a stretch to imagine the first president of the republic turning pale when he discovered how out of whack the executive-legislative imbalance has become.

An increasing number of lawmakers, Republicans and Democrats, are finally beginning to come to grips with this embarrassing situation. Reps. Walter Jones (R-N.C.) and Barbara Lee (D-Texas), two legislators who have consistently reminded their colleagues that the legislative branch is becoming exceedingly irrelevant during wartime, are no longer making their case alone. The 115th Congress, although only a few months old, is becoming far more activist on the subject of war powers than previous Congresses—a development that constitutional scholars, the men and women of our armed forces, and the American people in general, should all cheer.

As of last week, there have been five war-powers resolutions and bills introduced into the Congressional Record. Some, such as an AUMF proposal put forth by Sen. Todd Young (R-Ind.) are open-ended and provide the president with a tremendous amount of authority to use military force against terrorist groups regardless of national borders or time constraints. Representative Lee’s attempt to insert Congress into the war-making process includes a prohibition on funds for the deployment of U.S. ground-combat forces into Syria unless Congress authorizes such a mission in the first place.

Rep. Peter DeFazio (D-Oregon) takes a far more comprehensive and ambitious approach, one that not only seeks to modify the 1973 War Powers Act but also attempts to define what congressional consultation actually means. Indeed, DeFazio’s effort would be one of the most transformational pieces of legislation on war and peace in over four decades—so transformative, in fact, that it would allow any member of Congress to sue the president if he or she believes that the commander-in-chief deployed troops or ordered a bombing mission without congressional approval. Judges, in turn, would no longer have the excuse of ruling that these questions are non-justiciable; DeFazio’s bill would compel the judiciary to rule on the merits one way or the other.

And then, of course, there’s Sens. Rand Paul (R-Ky.) and Mike Lee (R-Utah), who have re-introduced legislation that would require the president to obtain congressional consent before deploying U.S. forces as part of a UN peacekeeping mission or for a humanitarian operation. Presidents could be forbidden from taking the Bill Clinton route—arguing that an atrocity or an impending humanitarian catastrophe was so detrimental to U.S. national-security interests and the stability of the world that congressional authorization would have to be acquired at a later date.

Regrettably, the chance that any of these bills will be debated in committee this year—let alone passed and then moved onto the House or Senate floor—is minuscule. Congressional leadership in both the Republican and Democratic parties remain highly deferential to presidential prerogatives when the use of military force is the topic of conversation. In many ways, this deference is understandable; the president, after all, is the commander-in-chief of the armed services under the U.S. Constitution, a title that brings with it a tremendous amount of power during a time of war.  

Being deferential, however, doesn’t mean being absent or derelict. Unfortunately, that’s precisely what Congress has chosen to do all of these years. Rather than debating matters of war and peace and taking the uncomfortable votes that are required under Article I of the Constitution, members have chosen the path of least resistance. They have, in effect, buried their heads in the sand, stretched the statutory limits of previous authorizations beyond what the authors of those bills likely would have accepted, and relegated themselves to the peanut gallery rather than being frontline players.

The legislative branch, like the other two branches of government, is bound to the dictates of the U.S. Constitution. It’s long past time for members of Congress to start acting like legislators, instead of politicians who are afraid of engaging in a politically difficult debate—putting their own careers ahead of what is good for the country.

Daniel DePetris is a regular contributor to The American Conservative.