Congress must reclaim its war-making powers

Three consecutive presidents have taken military action under the increasingly dubious legal auspices of the 2001 Authorization of the Use of Military Force passed by Congress following the September 11 attacks. Now, as the House contemplates the future of this legislation, lawmakers of both parties must consider not only what powers Congress has given President Trump to pursue a foolhardy war with Iran, but whether or not they ought to reclaim this most sacred of democratic government’s duties: the decision to commit American soldiers to fight and die abroad.

The 2001 AUMF was designed to allow then-President George W. Bush latitude to pursue al Qaeda across the world after its deadly assault on the U.S. homeland. But since then, the AUMF has been cited as the legal justification for American military intervention in at least seven places, several of which have little or very tenuous al Qaeda ties. It appears this administration is preparing to make the argument that it allows them to initiate military action against Iran.

The current AUMF is a symptom of a larger problem, which is that the White House has too much power to initiate and sustain military conflict without congressional review. The root problem here is politics. While there is a core bipartisan group of lawmakers committed to ending this AUMF and triggering the need for a new one for any sustained military engagement, the politics of voting on war in general are nearly always bad. Just ask Hillary Clinton, whose Iraq war vote sank her presidential candidacy in 2008, or Joe Biden, who faced criticism on the debate stage recently for that same vote over a decade later.  

Take the escalating tensions with Iran, for example. Bipartisan majorities of voters oppose military engagement with Iran. But in Congress, the Democratic House passed a repeal of the AUMF on a mostly party-line vote in their version of the defense funding bill, while in the Senate, Democrats were unable to convince enough Republicans to add provisions to that chamber’s National Defense Authorization Act that limited President Trump’s ability to wage war with Iran. Partisanship and politics trumped voter preferences. This week the Congress once against debated AUMF policy, at least in the House, thanks to Rep. Barbara Lee’s (D-Calif.) amendment to the House version of the National Defense Authorization Act.

The president’s own party will always be hesitant to actively curb his authority in foreign policy. And no matter who is charge, lawmakers see voting for war as a long-term loser. Wars almost never remain popular, even when they begin that way.

Since the problem is political, the solution must acknowledge and accept the political challenges of voting on the use of military force. Congress is at best a slow moving and at worst outright dysfunctional legislative body. Unless forced to act, Congress is unlikely to take up politically perilous votes on military engagements. There are two ways to deal with these deeply ingrained incentives in Congress.

First, there should be new legislation to do the following: require sunset provisions for any future Authorization of the Use of Military Force, prohibit such AUMFs from being renewed by a simple continuing resolution and limit the length of time any AUMF can be in effect to a maximum of five years.

The goal of this legislation would be to force a regular debate in Congress regarding the ongoing military engagements across the world and the fitness of the current president to prosecute them. Part of this legislation could give a sunset date for the current AUMF that is politically palpable to Senate Republicans, the lynchpin in Congress to its passage.

By ensuring that no AUMF can exist forever, and that it can’t be renewed in a late-night session of Congress when no one is paying attention, lawmakers would be forced to reclaim their role as the arbiter of what the United States does with its armed forces. If you can’t change the politics, change the rules.

But, perhaps you can try to change the politics, too. Lawmakers are notoriously short sighted, living by the daily polling numbers and even the relatively short two-year cycle of elections. The argument over the AUMF usually comes up whenever a president is contemplating imminent military action, like President Trump’s provocation of Iran.

But while the short-term politics favor congressional doves and the party out of power in the White House, the long-term politics are very balanced for both sides. There will be future Democratic and Republican presidents, and those presidents invariably will have their own wise and unwise ideas about the use of the American military. The five-year clause ensures that any future AUMF runs across a presidential term of office, as well as two midterm elections where power can shift in the legislature back towards the party out of the White House, as it often does. This means that lawmakers will get their moment to reel in a president who is taking an unwise course with foreign policy, or simply constrain a president they oppose for pure political gain.

This law may lead to less interventionist foreign policy in general, but the War Powers act still provides the president significant authority and discretion to commit military action, for example in response to an attack on the United States or its allies. But because of the ongoing existence of the 2001 AUMF, the congressional consultation phase required by War Powers, where the president must seek the authority of Congress to continue any military engagement, is nullified thanks to the broad interpretation of the powers granted to the White House by Congress in the AUMF.

A true democracy would ensure, above all else, that the representatives of its voters in the legislature would control the power to make war. Executive actions without the force of law come and go; some are consequential and others less so. But there is no undoing loss of life and limb, the horrors of PTSD, or civilian deaths resulting from military action decided by one person sitting in the Oval Office. Congress must reassert its constitutional authority to decide whether the United States should make war not just to constrain President Trump today, but to ensure that the democratic process has its say over American military action in all future administrations.  

Douglas Farrar was a policy adviser to two members of Congress, including a senior member of the House Appropriations Committee. He is now the director of public affairs at the Carnegie Endowment for International Peace. Follow him: @DouglasLFarrar.