Article I, Section 8 of the US Constitution grants Congress the power to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies [and] to provide and maintain a Navy.”
In other words, “everything except the power of military command resides in Congress,” as the historian Jean Edward Smith has explained.
Yet, over the past decade and half, the Authorization for the Use of Military Force (AUMF) has been used as legal justification for the administrations of Presidents Bush II, Obama, and Trump to wage wars only tangentially—if at all—related to the original writ, which empowered the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”
In the years following, the AUMF has been invoked to justify US military interventions in Iraq, Syria, and Libya. Retired Lt. Col. Daniel Davis has written that since its passage the AUMF has been used as legal grounds for military action 17 times under Bush and 19 times under Obama. And, writes Davis, “Trump has picked right up where his predecessors left off.”
In April, Senators Bob Corker (R-TN) and Tim Kaine (D-VA) sought to remedy this by introducing legislation that would, in their telling, reestablish the congressional prerogative over war powers. Their bill would repeal the 2001 and 2002 AUMFs (the latter authorized the war in Iraq), institute a quadrennial congressional review, and mandate measures that would ensure greater “oversight and transparency.”
Yet critics argue that the Corker-Kaine measure would only make matters worse. Indeed, some charge that the bill would result in a wholesale transfer of war-making authority from the legislative to the executive branch. US Army Maj. Danny Sjursen writes that Corker-Kaine “would essentially rubber-stamp the president’s authority, for instance, to continue the ongoing shooting wars in at least seven countries where the US is currently dropping bombs or firing off other munitions.”
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“By transferring the invocation of war powers to the executive branch,” writes Sjursen, “Congress would, in fact, make it even more difficult to stop a hawkish president from deploying US soldiers ever more expansively.”
On Wednesday, Senators Bernie Sanders (I-VT) and Rand Paul (R-KY) held a hearing on the likely ramifications of Corker-Kaine, should it ever become law.
Paul acknowledged that Corker and Kaine’s bill is a good-faith effort, but said it is woefully inadequate to the task. According to Paul, “The Corker/Kaine Authorization does not limit the scope of war it merely codifies the status quo and I would argue actually expands the current theaters of war. Corker/Kaine authorizes war against at least eight groups that are known to operate, all together, in over 20 countries.”
A bipartisan set of witnesses, including Fox News legal analyst Judge Andrew Napolitano and the ACLU’s Christopher Anders, agreed with Paul. Anders noted that “it would be hard to overstate the depth and breadth of the dangers to the Constitution, civil liberties, and human rights that the Corker-Kaine AUMF would cause.”
Anders testified that the bill “would authorize force, without operational limitations, against eight groups in six countries—and then allow the Executive Branch authority to add to both lists, as long as the president reports the expansion to Congress.”
Given the risks posed by Corker-Kaine, Senator Jeff Merkley (D-OR) has proposed a sensible and timely alternative to the blank check offered the executive branch by the senators from Tennessee and Virginia. According to Merkley, Corker-Kaine would flip “constitutional authority on its head by giving the President the power to start and expand wars while leaving Congress with the impossible task of overriding Presidential actions.”
His alternative, the Constitutional Consideration for Use of Force Act, includes provisions that ensure that “Congress must vote proactively before the President expands the war to new groups and territories and puts in additional checks and balances, including a 3-year sunset clause, limits on ground troops, and requiring adherence to international law.”
Last week’s hearing by Sanders and Paul, as well as Merkley’s proposed alternative, shows that, for now anyway, there are still lawmakers who take their role, and the Constitution, seriously.
