Come On, Congress! Take Back Your War Powers
(Bloomberg Opinion) -- “Nothing is so permanent as a temporary government program.”
The quip is from the late libertarian economists Milton and Rose Friedman, who would not have been surprised that the same is true of war resolutions. But now a bipartisan group of congressmen is trying to change that.
The Authorization for the Use of Military Force Against Iraq Resolution of 2002, the congressional act that let President George W. Bush commence military operations there, is still in force 19 years later. So is the corresponding resolution Congress passed in 1991 to let his father lead a war to eject Iraqi occupiers from Kuwait. Those resolutions are striplings compared to a resolution from the Dwight Eisenhower era giving the president the ability to offer military assistance to countries in the Middle East. It has been allowed to turn 64.
The new legislation, offered by two Democrats and two Republicans in the House of Representatives, repeals all three resolutions. One of the sponsors, Wisconsin Republican Mike Gallagher, says that leaving them on the books has amounted to an “abdication” of Congress’s constitutional power to determine questions of war and peace.
Presidents in both parties have used old authorizations of force in controversial ways. A 2001 resolution, passed just after the Sept. 11 attacks on the World Trade Center and Pentagon, has been especially prone to being stretched. President Barack Obama’s administration cited both the 2001 and 2002 resolutions to justify waging a campaign against the Islamic State in Iraq and Syria without having to get new congressional approval. President Donald Trump’s administration followed the example, and congressmen reported that Secretary of State Mike Pompeo had floated the idea that the 2001 resolution allowed an attack on Iran.
The bipartisan endorsement of this theory doesn’t make it less dubious. The 2001 resolution was directed against those who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” The Islamic State didn’t even exist at that time. The 2002 resolution empowered the president to combat “the continuing threat posed by Iraq,” rather than to combat the subsequent threat posed by a transnational terrorist group to Iraq and Syria. War on Iran doesn’t really fit these resolutions either.
But presidents have gotten away with these contrived arguments. When the fight against Islamic State commenced, legislators were split. Some wanted the U.S. to stay out of it; some wanted a congressional resolution that authorized but also limited military operations; some backed wide executive discretion; and some, no doubt, didn’t want to take any responsibility for whatever the president decided to do. Unable to reach a consensus, Congress defaulted to inaction — which meant letting first Obama and then Trump direct a military campaign without its formal input. It was an “abdication,” just as Gallagher says, and the theories about the 2001 and 2002 resolutions were a fig leaf to cover it.
The repeal legislation is a partial corrective to presidential unilateralism in matters of war and peace. Very partial: It doesn’t tackle the 2001 resolution, which is both obviously outdated and frequently invoked.
Congressional proponents of the bipartisan repeal make a virtue of this incompleteness by arguing that deleting the three resolutions covered by the bill would not force any changes to ongoing military activity. But that also means that the military will keep being engaged in operations that Congress only kind-of-sort-of authorized, two decades ago. If Congress wants some or all of those operations to continue, it ought to replace the 2001 resolution with a new authorization — ideally with a sunset clause. (President Joe Biden’s administration, to its credit, wants an update.)
Jack Goldsmith and Samuel Moyn, law professors at Harvard and Yale respectively, argue that even this step wouldn’t be enough. Their logic is that since presidents have shown that they do not consider their war-making capabilities to be limited by Congress, legislators have to go further than not authorizing the use of force; they should consider steps to block presidents from using military force that they have not authorized, such as automatically cutting off funds for unauthorized military deployments after a set time.
Restoring limits on the executive power to initiate wars may require drastic steps like that one, although they could raise thorny issues. Funding deadlines could make for dangerous brinkmanship between the branches. Repealing the 1957, 1991 and 2002 resolutions is, by contrast, the very least a self-respecting Congress could do. So it ought to get on with it.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Ramesh Ponnuru is a Bloomberg Opinion columnist. He is a senior editor at National Review and a visiting fellow at the American Enterprise Institute.
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