By June 21, 2021
After two decades of sitting on its hands and largely ceding its own authority to the executive branch, could it be possible that Congress is now showing backbone and reasserting itself on matters of war and peace? The answer, notwithstanding the latest developments, is “to be determined.”
On the one hand, last week’s vote in the House of Representatives to repeal the 2002 authorization for the use of military force (AUMF) against Iraq exhibited a newfound seriousness on this issue. As lawmakers on both sides of the aisle have since acknowledged, the 18-year-old resolution was conjured up at a different time and under very different circumstances. Crafted to tackle the supposed national security threat Iraq’s Saddam Hussein presented to the United States (I use the word “supposed” because the now-deceased tin-pot dictator hardly warranted an expensive and totally counterproductive invasion and occupation of an entire country), the 2002 AUMF has languished like an old baseball player who refuses to retire. The fact the repeal was passed by such a large margin (given the divided nature of today’s Washington, 268-161 is a blowout) reveals the extent to which lawmakers have soured on it.
As a practical matter, Congress is beginning to acknowledge that keeping outdated resolutions on the books makes little sense and in fact can have unintended consequences. While it’s certainly true that repealing the 2002 AUMF is the lowest hanging fruit available—some have suggested last week’s vote was largely a symbolic exercise—those on Capitol Hill in charge of the effort are also convinced that failing to kill the resolution would theoretically give President Joe Biden and any president who succeeds him with an opportunity to abuse it in a future contingency.
It’s not a crazy argument, for abuse like this has happened before. In 2014, the Obama administration justified the military campaign against the Islamic State partly on the 2002 AUMF, which was written over a decade before ISIS even existed as an organization. The Trump administration did something similar in 2020, making the mind-boggling case in a formal letter to Congress that the 2002 resolution covered the operation against Iranian Gen. Qassem Soleimani near the Baghdad International Airport. Lawmakers at the time were so aghast at the reasoning that the House and Senate passed a resolution prohibiting any further military action against Iran without the explicit approval of Congress (Trump would go on to veto the resolution).
If past presidents were willing to stretch the 2002 AUMF to a comically absurd level, it’s the height of delusion to assume future presidents wouldn’t do the same thing. If there is anything recent history has demonstrated, it’s that the executive branch (regardless of who staffs it at any given time) is an inherently expansionist institution. If it can get away with claiming more power for itself at the expense of other branches, it will have no hesitation doing so.
Architects of the 2002 repeal bill in the House are gleaming with excitement. The real test, however, is the 2001 AUMF, the 60-word authorization passed several days after the 9/11 terrorist attacks which has since been levied by four consecutive presidents as a kind of magic-wand for the post-9/11 terrorism wars. From Syria and Libya to the Philippines, the executive branch effortlessly points to the 2001 AUMF whenever a lawmaker has the nerve to question why U.S. troops are performing training, advising, and/or bombing missions halfway around the world. According to the Congressional Research Service, multiple U.S. administrations have cited the 2001 AUMF to explain operations in 14 different countries—a far cry from the relatively specific language against Al-Qaeda and the Taliban contained in the resolution. Some of those training and advising missions, in turn, are really smokescreens for quasi-combat missions, in which U.S. special operations forces conduct kinetic operations in the field alongside host-country forces. Unfortunately, Capitol Hill at large doesn’t tend to pay attention until something goes horribly wrong; when four U.S. troops were killed in Niger in 2017, top lawmakers weren’t even aware the U.S. military had a presence there.
None of this begins to mention the president’s Article II authority as enshrined in the U.S. Constitution. While the nation’s founders placed the ultimate authority on whether or not the U.S. goes to war with the legislature, the branch most directly accountable to the American public, they also understood there were situations when the commander-in-chief needed to defend the United States on short notice. This, however, was reserved for extraordinary circumstances, the principal one being repelling an armed attack upon the U.S. In every other instance, presidents had to come to Congress with a request—and it was Congress, and Congress alone, that determined whether to entertain it.
In an age of executive overreach, the commander-in-chief clause is now twisted into an unrecognizable pretzel. What was designed to be a narrow exception is now utilized by presidents and their lawyers as a virtual blank check: Richard Nixon in Cambodia, Ronald Reagan in Libya, George H.W. Bush in Panama and Somalia, Bill Clinton in Haiti, Iraq, Bosnia and Kosovo, Obama in Libya, Trump in Syria, Biden in Syria … all of them relied to one degree or another on an expansive interpretation of their Article II power. With the exception of a few members (Rand Paul, Mike Lee, Bernie Sanders, Tim Kaine, Ro Khanna, Barbara Lee and Peter Meijer to name a few), Congress has been far more comfortable enabling this behavior than doing anything to challenge it.
It’s far too soon to say that last week was the beginning of a new era in which Congress reclaims its constitutionally-given war power. But this much is certain—until lawmakers stop providing the executive branch the benefit of the doubt about when and where to take the nation to war, inter-branch disputes on this issue will continue for a long time to come.
* Daniel R. DePetris is a fellow with the Defense Priorities think tank, columnist at the Washington Examiner and a contributor to The National Interest.