Congress, don’t rubber-stamp executive war power overreach

For too long, Congress has abdicated its constitutional duties to declare war. The most recent war authorizations — passed in 2001 and 2002 — have both been twisted beyond recognition and have been cited as justification for military operations in 14 different countries at least 37 times. It’s doubtful anyone who voted to hold those responsible for the 9/11 attacks ever imagined that authorization would be applied to justify combat operations in Niger.

A number of members of Congress have fought for years for a new authorization vote to debate our current wars and assess whether those wars are achieving those aims. Recent legislation proposed by the Senate Foreign Relations Committee Chair Bob Corker (R-Tenn.) appears to finally be an opportunity for a real and meaningful debate. Unfortunately the bill, as currently written, is totally unacceptable and would only further erode Congress’s constitutional responsibility to declare war.

This effort, like many before it, seeks to increase flexibility to use force. Under the legislation Congress would furher outsource its duties to declare war to the executive and instead only have the ability to weigh in.”

For example, the president could decide to add new groups to the war authorization by notifying Congress. Congress has the ability to protest those additions through expedited procedures — if 60 days sounds expedited to you — but would need Congress to vote to prevent expanded wars. Shouldn’t it be harder to send our troops into danger and not the other way around? Checks are similarly weak when it comes to geographical expansions of war and Congress’s ability to meaningfully respond to reports from the president every four years.

The real problem, of course, is that Congress has failed to tie the president’s hands enough when it comes to deciding when and why to send servicemen and women into harm’s way. Congress passes spending bills without allowing for real debate and consideration of our current wars, and the war spending account has been used as a slush fund for pet projects of the Pentagon and Congress. Giving the initiative to the executive rather than the legislative branch is a disastrous ceding of congressional authority. Codifying that this is how Congress understands its role risks undermining the Constitution’s checks and balances by asking Congress to serve as the president’s consultant. 

There is a widespread agreement that many of our current operations are not legal. This legislation would approve those operations and the decision of presidents to continually expand war without congressional authorization. The appropriate response to executive overreach isn’t to rubber stamp it, but to examine our current national security threats and only judiciously authorize the use of military force as appropriate to address those threats.

While presidents have often ignored the fact that the Constitution gives Congress the sole responsibility and authority for taking the nation to war, the constitutional requirement remains. Members of Congress continuing to give up this responsibility are betraying of our democratic institutions. The legislation before Congress is an expression of what they consider to be politically possible, not what is constitutional or right.

Some believe a deeply flawed war authorization is better than the status quo. But for those who care about the Constitution, it’s difficult to imagine approving something much worse.

Mickey Edwards (R-Okla.) was a member of Congress for 16 years, serving as chairman of the House Republican Policy Committee and as a ranking minority member of the House Budget and Appropriations Committees. After leaving Congress, he taught for 16 years at the Harvard Kennedy School of Government, Harvard Law School, and Princeton’s Woodrow Wilson School of Public and International Affairs before returning to Washington to become a vice president of the Aspen Institute.

Louis Fisher is a fellow at The Constitution Project at the Project On Government Oversight. Previously he worked for four decades at the Library of Congress as Senior Specialist in Separation of Powers and Specialist in Constitutional Law. During his service with the Congressional Research Service he was research director of the House Iran-Contra Committee in 1987, writing major sections of the final report. Fisher’s specialties include constitutional law, war powers, budget policy, executive-legislative relations, and judicial-congressional relations.