In spite of campaign promises and repeated calls for reform, President Barack Obama will leave office having expanded the reach of presidential war powers arguably beyond that of any modern predecessor. The first year of President-elect Donald Trump’s term presents a fresh opportunity for Congress to reconsider the appropriate relationship with the executive branch on the use of force. Rather than peering down Pennsylvania Avenue at a legal scholar well-apprised of the constitutional division of war powers, President-elect Trump’s malleable views on the matter and hints of congressional bipartisanship on foreign policy set the stage for reform.
Although presidents have long been granted wide deference in the application of military force abroad, recent years have driven congressional war powers to an impressive nadir. The Obama administration argued that the 2011 Odyssey Dawn Operation in Libya did not trigger the legislative authorization requirement process mandated by the 1973 War Powers Resolution (WPR) because drone operators were not physically in “hostilities.” That legal rationale was widely ridiculed. However, congressional backlash to operations in Libya lasted for only a few months before most members lost interest in the issue. Two years later, President Obama chose not to initiate military operations in Syria in response to the regime crossing a “red line” on chemical weapons after requesting authorization from Congress. Despite holding off, Obama’s claim that the president still possessed sufficient authority to act without congressional consent, which appeared unlikely, further broadened modern interpretations of unilateral executive war powers.
Although the WPR has frequently been violated since its inception, the existence of the law and the 60-day ticking clock it imposes on unauthorized overseas military operations has served as a valuable tool for Congress in raising the political costs of unilateral presidential action. Even that political utility has all but disappeared with the advent of modern warfare. Light-footprint Special Operations Forces, drones, cyber operations and other unconventional tactics remain under the radar for most Americans, making it difficult for Congress to challenge unilateral executive action.
Also troubling is the ever-expanding writ of the 2001 Authorization for the Use of Military Force (AUMF). Current U.S. counterterrorism operations in Afghanistan, Iraq, Syria, Libya, Yemen and elsewhere are nominally authorized by the 2001 AUMF, a 16-year old, 60-word authorization that only explicitly targeted terrorist groups involved with the September 11 attacks. The Islamic State and other non-Al Qaeda affiliated groups are notably outside that original scope and have been accounted for by a burgeoning interpretation of “associated forces.” This increasingly dubious legal rationale damages American international legitimacy and hamstrings U.S. attempts at genuine criticism of Russian and Chinese violations of international law. Not only is the legal basis problematic, but the vast majority of current members of Congress have never even had a chance to vote on it; only around 70 current legislators were present in 2001. With the imperative for global counterterrorism operations unlikely to abate for the foreseeable future, Congress needs to find an appropriate means of reengaging on the issue.
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Congressional negligence on war powers has perverse consequences for national security. Without checks and balances on presidential prerogatives, the United States is more likely to use military force in inappropriate circumstances devoid of coherent strategy. The important duty of congressional oversight on foreign and defense policy seems rather hollow when the institution seldom votes on the use of military force abroad. Congressional oversight can encourage deliberation of alternative policies, guide strategic direction, and galvanize public support for military engagements. Regular congressional authorizations of U.S. military operations signal the strength of U.S. commitments to allies and adversaries by uniting the political branches of government behind policy.
Although the prospects for reform are rarely encouraging, a few glimmers of hope in the 115th Congress are emerging. Several key players already support reviving Congress’ role in declaring war. Senator John McCain, chairman of the Senate Armed Services Committee, previously co-sponsored the 2014 War Powers Consultation Act with Senator Tim Kaine and has hinted at an interest in holding hearings on the issue over the next year. Secretary of Defense nominee James Mattis has previously written on the benefits of Congress passing authorization for the campaign against the Islamic State. With President Trump in the White House, convincing Democrats on the Hill to act in the interest of their own institutional powers on the use of force should not be difficult.
The motivation for action may further be spurred by concern about President-elect Trump’s approach to use of force and related matters, from disagreements over the benefits of alliances to Trump’s fondness for Russian President Vladimir Putin. President-Elect Trump’s comments on waterboarding and targeting the families of terrorists present the best justification for congressional action. Granting that it is nearly impossible to discern signal from the noise in the campaign season, reinvigorating congressional checks on presidential war powers would be the prudent course of action. It would also be a politically wise move for GOP congressional leadership, since criticism of any foreign policy blunders of the Trump administration will almost certainly be directed at the Republican Party en masse.
Beyond the politics of war powers authority, legal and practical complexities have made it a vexing area for crafting policy. Any serious reform effort aimed at correcting the executive-legislative branch relationship on war powers must be a multi-year, incremental approach. Congress should consider pursuing the following steps:
- Pass the War Powers Consultation Act (WPCA). Originally developed by the National War Powers Commission in 2008, the act would repeal the WPR, require the president to consult with Congress before deploying armed forces in a “significant armed conflict,” establish a Joint Congressional Consultation Committee and require Congress to vote on the authorization of a significant armed conflict within 30 days of commencement of hostilities. The WPCA would not be a silver bullet; it would however be a step toward shifting the tenor of executive-legislative war powers debates to a healthier balance in the context of twenty-first century trends of warfare.
- Establish a commission to study reform options for the 2001 AUMF. Repealing and replacing the 2001 AUMF with a long-term framework authorization for counterterrorism operations is a heavy lift. Several proposals have surfaced, but crafting a coherent legal and strategic approach is sorely needed. Congress should commission a comprehensive study with legal, policy and military experts to examine the issue and provide recommendations for reform.
- Pass an AUMF for operations against the Islamic State. Prior to reforming the 2001 AUMF, explicit authorization to target the Islamic State would ameliorate the consequences of status quo legal ambiguity and demonstrate U.S. resolve in the fight.
Opportunities for resetting the executive-legislative branch equilibrium on war powers are few and far between, but necessary ingredients for reform are present in the 115th Congress. Congress should take the lead in reasserting its war powers early to establish a productive foreign policy working relationship with the Trump administration that respects the constitutional role for Congress in authorizing military operations. Simply renewing the debate on the proper balance of power would be an improvement on the dearth of dialogue in recent years.