When it Comes to War Powers, Congress Needs a Seat at the Table

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6486861 1140x570 1

Congress Must Pass War Powers Resolutions and Repeal Military Force Authorizations

By Anthony Marcum – Resident Fellow, R Street Institute 

Last month, President Biden announced the withdrawal of all American troops in Afghanistan by September 11, 2021, twenty years after the 9/11 terrorist attacks and the beginning of the global War on Terror. 

Just weeks after the 9/11 attacks, 8 in 10 Americans supported the decision to send troops to Afghanistan. But today, after two decades of military presence in the country, Americans have a different view. Over 60% believe the U.S. has for too long been engaged in conflict in Afghanistan, and 7 in 10 Americans—including a majority of both Democrats and Republicans—support the President’s decision to withdraw troops. 

Even with Americans’ soaring views on U.S. military presence in Afghanistan, the foundations for another multi-decade conflict are still in place. Broad congressional authorizations, combined with the Executive Branch’s extensive view of its foreign affairs power, continue to allow any president to conduct similar and lasting operations in nearly any corner of the globe. 

If Americans want to avoid another multi-decade war, they should look to Congress to reassert itself as a collaborator—not a bystander—in wartime decision-making. 

The Constitution envisions both Congress and the President sharing war powers. While Article II designates the President as commander in chief of the armed forces, Article I gives Congress the power to declare war and “raise and support” those same forces. This divide was deliberate. As Alexander Hamilton argued in Federalist 69, divided war powers between the Executive and Legislative branches distinguished the United States from the King of England, who had the sole authority to declare war, raise troops, and regulate Britain’s military. 

Despite this foundation, the delicate balance of war powers between the Executive and Legislative branches has historically tilted towards the president’s favor. By the time of the Civil War, Lincoln’s wartime authority “would have shocked most founders.” The Korean War—which resulted in over 36,000 American deaths—was conducted as a “police action” and was never officially authorized by Congress. It wasn’t until the Vietnam War that Congress finally began legislative action to reassert itself in the war powers debate. 

Although the U.S. had a military presence in Vietnam for several years prior, in 1964, Congress passed a resolution authorizing President Lyndon Johnson “to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression” in Southeast Asia. As the Vietnam War escalated, the war became highly controversial. In 1971, Congress repealed the resolution, but the war continued. Then-President Nixon argued that congressional authorization wasn’t necessary to continue the war, and his status as commander in chief would suffice. 

Two years later, Congress passed the War Powers Resolution (WPR). The WPR requires the president “in every possible instance,” to consult with Congress before sending troops “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” And unless Congress authorized additional action, the president must “terminate” any further use of armed forces after sixty days. President Nixon vetoed the WPR, arguing it was “unconstitutional and dangerous to the best interests of our Nation.” Congress overrode the President’s veto, and the WPR was enacted into law. 

Nevertheless, the WPR today has little impact on curbing a president’s decision to take unilateral military action. Presidents have historically interpreted “hostilities” under the WPR loosely. The Obama administration, for example, argued that airstrikes in Libya—lasting four days and destroying over 100 Libyan targets—did not meet the definition of “hostilities.” Another blow has been the president’s veto power. In 1983, the Supreme Court held the “legislative veto” unconstitutional, meaning that to remove troops, Congress has to gain a president’s signature or—more likely—override a president’s veto. In his only term, President Donald Trump vetoed two bipartisan attempts by Congress to trigger the WPR. 

Another obstacle to Congress’ vital war powers role is Congress itself. In addition to Congress’s historic reluctance is its broad authorizations for use of military force (AUMF)—most notably the 2001 and 2002 AUMFs. The 2001 AUMF authorized the president to use force “against those nations, organizations, or persons” responsible for the 9/11 terrorist attacks. The 2002 AUMF authorized the president to defend the U.S. “against the continuing threat posed by Iraq.” Yet much has changed over the subsequent two decades. Iraq is now a “key partner” in the Middle East, and al Qaeda has been fractured into many other groups scattered across the world. Yet, both authorizations remain in place and have set the groundwork for military intervention in nearly 20 countries.

This continued war powers imbalance has real-life implications. Every senator or representative has a constituent who has served overseas. Every district has young men who are still required to register for selective service, with the potential of one day having to serve their country. Every casualty has friends and family. Congress is the federal branch most connected to the people. If Congress loses its constitutional role in determining when and where soldiers are sent overseas, the people lose their most direct voice and advocate in the federal government. 

Despite years of congressional indifference, there is perhaps some renewed reason for optimism. Recent congressional action suggests a possible 1970s redux; that is, congressional interest in reclaiming its constitutional war powers following years of military conflict with insufficient oversight or public scrutiny. More importantly, despite a deeply contentious presidential election and the horrific events on January 6, these efforts are substantive and bipartisan. Legislation jointly introduced by Republican and Democratic lawmakers in both the House and Senate would repeal the 2002 AUMF. The House Rules Committee recently held a bipartisan hearing considering changes to the War Powers Resolution. 

Such reforms would not limit the president’s ability to defend the nation from sudden attacks or leave our troops vulnerable overseas. The president will always remain the commander in chief. Congress, however, serves as a vital partner. Without Congress, we lose essential institutional checks, which fuels unchecked conflicts, ultimately harming the very constituents lawmakers serve. The U.S. must defend itself and its national security interests. At the same time, lawmakers and the public have the right to scrutinize those decisions and participate in the debate. The most immediate reforms—like withdrawing the 2002 AUMF and amending the 2001 AUMF and WPR—are not drastic changes but would simply give Congress its rightful seat at the table. 

This article is part of  Divided We Fall’s “Constitutional Questions” series, covering a range of political topics fundamental to the U.S. Constitution and democratic institutions. Through this series, we ask constitutional scholars, journalists, elected officials, and activists to discuss how these ideals are – and are not – implemented today. If you want to read more pieces like this, click here. We’ll offer a closer look at the military powers of the president, and more.

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Anthony Marcum
Resident Fellow, R Street Institute | Website

Anthony Marcum is a resident fellow at the R Street Institute, where he focuses on the federal judiciary and separation of powers disputes. Prior to joining R Street, Anthony worked at a boutique litigation law firm in Michigan and clerked in federal district courts in West Virginia and New Hampshire. He is an adjunct professor at George Washington University’s Graduate School of Political Management and an Associate Editor of the American Bar Association’s Litigation Journal. Anthony holds a bachelor’s degree from Ohio State University, a JD from Rutgers Law School and a master of laws from Georgetown University Law Center.

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