Symposium | Rebalancing National Security

War Powers: We Must Do Better Than the Current Monarchism

By Stephen Pomper

Tagged CongressForeign Policynational security

American presidents have gathered too much power to take the country into war. Toward the end of the Trump Administration, a movement to transfer some of that power back to Congress appeared to be gathering steam, driven in part by bipartisan war fatigue and in part by concern about what the erratic and impulsive Donald Trump might unilaterally do. But these efforts have largely petered out. This is a problem, and not just because Trump could well find his way back into the presidency. Regardless of who sits in the Oval Office, placing so much power in the hands of one person isn’t good for democratic governance or conflict prevention.

The concentration of war powers in the executive branch has become increasingly accepted as a structural feature of American government over the past eight decades. Since World War II, presidents have frequently asserted broad authority to launch wars or expand U.S. involvement in them without getting permission from the legislative branch. Although Congress authorized some of the biggest modern entanglements (Vietnam, Afghanistan, and Iraq), the list of unsanctioned adventures is longer still. Congress did not authorize the U.S. military to wage war in Korea, enter into the so-called Tanker War with Iran, intervene in Libya, strike Syria, or refuel Saudi sorties bombing Yemen. Nor did it authorize the executive branch to expand the Vietnam War to Cambodia and Laos, or to redraw the contours of the post-9/11 war on terror to include ISIS and other groups that did not even exist at the time of the 2001 attack.

How and whether this squares with the allocation of war powers in the Constitution are not straightforward questions. On the face of it, Congress and the executive branch share war-related responsibility. But the bulk of the enumerated war powers—including the power to “declare war”—belongs to Congress, and for good reason. The legislature is the more representative of the two political branches. Its decisions about when and where to spill American blood have greater democratic legitimacy than those taken by presidential fiat. It is also slower and more deliberative, opening up opportunities for public scrutiny and debate, and creating a useful brake on imprudent war-making. When speed is required to “repel sudden attacks,” in Madison’s words, the President has the power to act unilaterally in the nation’s defense, and that power is broadly understood to include the right to use force to protect U.S. nationals and property abroad.

The President’s war powers reside in the Constitution’s “Commander in Chief” clause, but there is little clarity in the text about where those powers begin and end, creating space for the executive branch to offer its own views. In recent decades, the Justice Department’s Office of Legal Counsel has produced a series of constitutional and statutory interpretations that greatly expand the war powers of the modern presidency. Congress could do more to claw its power back, but generally prefers to leave tough national security calls to the executive branch. The result is a system with a super-empowered presidency that Joe Biden, during his Senate years, described as “monarchist.”

But if Biden opposed monarchist war powers in the abstract, his record—even as a legislator—shows a reluctance to propose changes that would remove power from the President. That has held true during his presidency. Despite occasional hints dropped by senior officials that the Administration is open to war powers reform, the Biden Administration has done little to make that happen. Three years into the Administration, with a Republican-led House of Representatives, the window for legislative change during Biden’s first term is well past closed. But proponents should not give up the fight.

While Congress has generally been complicit in the aggrandizement of presidential war powers, this tendency has been punctuated by very occasional moments of reform. The most consequential of these was Congress’s enactment of the 1973 War Powers Resolution (WPR) over President Nixon’s veto shortly following the withdrawal of U.S. troops from Vietnam. The purpose of the WPR was to ensure that the United States could not slip into conflict without Congress being aware and to create tools for bringing unauthorized conflicts to a close. It required that Congress be notified of troop deployments meeting certain criteria and that troops deployed into “hostilities” be withdrawn if the executive branch didn’t receive authorization within 60 days. It also enabled Congress to force the withdrawal of troops from any conflict upon enactment of a bicameral “concurrent” resolution that did not have to be signed by the President.

It sounded promising. But the war powers realignment contemplated by the WPR never fully materialized. Every branch of government contributed to its watered-down implementation, starting with Congress. In arriving at a consensus text, legislators left certain key WPR terms undefined—a loophole the executive branch later exploited to interpret the statute to its advantage. Successive administrations cultivated narrow understandings of what it meant for U.S. troops to be deployed into hostilities and creative counting protocols that rendered the 60-day limit highly manipulable. Executive branch lawyers agreed among themselves that the President’s constitutional powers are constrained only by the need to act in the national interest (a low bar) and to avoid what lawyers call “war in the constitutional sense” (a high one). As for the Supreme Court, it invalidated Congress’s trump card—the capacity to force a withdrawal via bicameral resolution—in a 1983 decision establishing that (except in the case of a veto override, which requires a two-thirds supermajority) acts of Congress do not have the force of law absent presidential signature.

Then came the post-9/11 conflicts. As it prepared to invade Afghanistan in 2001 and Iraq two years later, the George W. Bush Administration elicited from the Justice Department two opinions about the scope of the President’s powers to act without congressional authorization. Breathtaking in their assertions of presidential authority, those opinions found that both invasions could have proceeded on the President’s self-defense powers alone—because of the deemed threat of terrorism in the first instance and the alleged presence of weapons of mass destruction in the second. Although Congress wound up authorizing both wars, these widely pilloried opinions have remained on the books. The executive branch has also developed elastic doctrines that allow deployed units to use force to defend both U.S. troops in the field and foreign forces it has deemed to be partners, with or without congressional approval.

At the same time, the statutes with which Congress authorized the wars in Afghanistan and Iraq have gone even further in transferring congressional power to the executive branch. The 2001 Authorization for Use of Military Force (AUMF), enacted in the wake of the 9/11 attacks, stands out in particular. On its face, the statute unleashes the U.S. military on those complicit in the attacks and those who harbored them. But because it does not specify geographic limits or identify the groups to which it applies, the executive branch asserted significant latitude to expand the conflict it authorized. Taking advantage of this, successive administrations have applied it to “associated forces” (i.e., armed groups that they deem to be waging war alongside Al Qaeda against the United States) as well as “successor forces” (i.e., Al Qaeda splinters like ISIS). Although some of the executive branch’s unilateral uses of force have been ratified through congressional action, in practice these mechanisms offer no opportunity for serious public scrutiny or debate.

Regret about the seemingly unbounded expansion of the war on terror—and the destruction that occurred within its ambit—no doubt contributed to the felt need to fix the broken war powers framework that began to emerge among some national security experts in the late 2010s.

Still, there were other considerations that fed reformist energy, including some discomfort among progressives about the Obama Administration’s legacy in global conflicts. Despite a stated wariness about becoming entangled in military misadventures, Obama not only continued the war on terror (disappointing supporters who hoped he would wrap up what they saw as a deeply flawed Bush Administration project), but he put it on broader and more durable legal footing by articulating an expansive framework for U.S. drone and detention operations and defending it aggressively in court. Obama also took the U.S. government into two reputationally and strategically costly—and unauthorized—conflicts in Libya and Yemen. The former fueled a wave of instability across the greater Sahel region, which continues to this day. The latter made the United States arguably complicit in a Saudi-led air campaign that fed one of the world’s largest humanitarian disasters.

But the drive for reform was surely also propelled by the sense of peril that attended Donald Trump’s erratic presidency. Although Trump did not get the United States into any new major wars, his nuclear saber-rattling against North Korean leader Kim Jong Un and reckless killing of Iranian General Qasem Soleimani could have escalated disastrously, and they highlighted just how much latitude the executive branch had arrogated to itself to start potentially world-threatening new wars. As legal scholar Jack Goldsmith noted at the time, the system for taking the United States into armed conflict was now essentially “One person decides.”

Against this backdrop, war powers reform started to look like something more than a pipe dream. In 2019, for the first time since the enactment of the 1973 WPR, Congress passed a bipartisan bicameral resolution under the law’s removal provisions, ordering the United States to pull back from hostilities in Yemen. The resolution ran into a presidential veto, but nevertheless suggested the flexing of underused muscles. Then, in 2021, bipartisan sponsors in both the Senate and the House introduced legislation that would have tightened up the WPR by adding key definitions, shortening the 60-day termination window, providing a template for future military authorizations that included a periodic reauthorization requirement, and creating an automatic funding cutoff for unauthorized conflicts.

Over the course of this period, others joined the fray. Both of the 2020 presidential candidates pledged to end endless wars. While they didn’t agree on every detail, experts from the left, right, and center threw their weight behind AUMF reform or WPR reform or both, and legal blogs offered roadmaps for how to make it happen. As the twentieth anniversary of the 9/11 attacks approached, two House committees held hearings on the topic, and The New York Times ran an op-ed penned by scholars on opposite ends of the political spectrum endorsing root and branch reform. In short, the project had some momentum. And yet three years into the Biden Administration it has produced no legislative change. So what happened?

Before exploring the breakdown of legislative reform efforts, it is important to acknowledge the concrete steps President Biden took to close out two of the most consequential conflicts in which the United States had been mired. Soon after entering office, the Administration ended U.S. support for Saudi-led offensive operations in Yemen. Then, several months later, it pulled troops out of Afghanistan—a move that, while criticized for its chaotic implementation, nevertheless removed the United States from the longest-running theater in the war on terror. The Administration stayed in the fight on other fronts, such as Syria and Somalia, but it did appear to slow the operational tempo in Syria and elsewhere, at least for a time, lowering both the profile of the ongoing missions and the opportunity for mishaps. Biden’s claim at the United Nations in September 2021 that the United States was no longer at war went too far—the war on terror continued. But what his Administration had done was nevertheless significant.

The same cannot be said about the Biden Administration’s efforts at structural reform. The Administration made a reasonable effort to rescind the 2002 Iraq war authorization, an effort that has floundered in the House this term. But the bigger ticket reform items have remained conspicuously parked. The Bush-era Justice Department opinions that give the President breathtaking powers to wage unilateral preemptive war remain on the books. The Administration has shown no interest in WPR reform legislation, which lapsed with the end of the last Congress and was then resuscitated by the reconstituted House. And while the House Foreign Affairs Committee did hold a hearing in September 2023 on 2001 AUMF reform, it became largely a forum for the four Administration witnesses (two each from State and Defense) to genially deflect any efforts to hem in the executive branch’s authority.

The fizzle is not altogether surprising. Among other things it reflects longstanding institutional preferences. The executive branch does not want to give up power and worries, perhaps reasonably, that in our current era, Congress will turn national security decisions into political footballs. For its part, Congress does not want to be held accountable for tough votes.

But outside pressure from the scholars, experts, politicians, and activists who once pressed for reform also seems to have diminished, for reasons we can only surmise. Perhaps Trump’s departure from the White House decreased the sense of urgency around reform—though that relief could be short-lived. Perhaps the departure from Afghanistan and the reduced tempo of counterterrorism operations have scratched the “end endless wars” itch. The dovish mood among progressives that helped drive the campaign against endless wars may have been eroded by a desire to help Ukraine fight its “long war” (which does not involve war powers because it does not entail the introduction of U.S. troops into hostilities). Trump and the other MAGA conservatives who railed against forever wars—creating political space for Republicans to take reform seriously—are now focused on trying to mobilize support for military adventurism against drug cartels in Mexico. And with great power competition on the rise, some national security scholars are floating the idea of transferring more power to the President by preauthorizing wars—for example, in defense of Taiwan—in order to reassure U.S. allies that squabbles between the political branches won’t keep the United States from coming to their aid.

Although war powers reform has dropped several rungs down Washington’s collective priority list, the issue is no less important today than it was several years ago. The balance of powers between the political branches remains lopsided, unhealthy, and—to use President Biden’s term—monarchist. The Bush Administration’s post-9/11 opinions sit undisturbed on the shelf, the 1973 WPR remains largely gutted, and the 2001 AUMF is comfortably ensconced as a well of endless authority for the conduct of endless wars. Congress’s role is increasingly consultative: Members (especially those on the armed services committees) may receive information about the United States’s engagement in conflicts, and Congress appropriates funding to keep them going, but it too rarely votes on use of force authorizations.

Why is this a problem? From a governance perspective, it is not good for the nation’s decisions about war and peace to be invested in a single person—advised often in secret by unelected executive branch lawyers and policymakers—instead of being negotiated by the two political branches. The absence of interbranch debate removes a critical check and balance on some of the most consequential decisions that the government makes. It keeps frank conversations about wars and their costs out of the public eye, closing off opportunities to draw insights from outside actors and potentially enabling the imprudent expansion of military operations. This is problematic even in situations where Congress and the executive branch are in lockstep about the need to go to war. It shields members of Congress from accountability for tough decisions on which they should be representing their constituents’ views and interests. It may also foster the sense, particularly on the right, that an unaccountable “Deep State” of unelected officials in the executive branch is directing the expenditure of U.S. blood and treasure—a suspicion that helps explain the prominence of “end endless wars” sloganeering in MAGA campaign rhetoric. Transferring yet more power to the executive branch in the name of reassuring U.S. allies risks feeding this sense of grievance and weakening the legitimacy of executive branch decision-making, as well as encouraging reckless decisions about matters of war and peace.

A better system is still within reach. The objective should be a series of meaningful checks and balances designed to ensure that members of Congress take difficult votes on conflicts every few years in a process that would permit the public an opportunity to weigh in and hold them accountable for those votes. To move in that direction, the executive branch should begin by immediately expunging or replacing opinions that set the metes and bounds of the President’s unilateral war-making authority beyond the responsible pale, not least because it should be keenly aware of the permission slip those opinions might grant to a potential reckless successor. The Bush Administration’s pre-Afghanistan and pre-Iraq opinions would be a good place to start.

The next step would involve a level of statutory hygiene. That means repealing the now vestigial 2002 Iraq war authorization, lest a future administration be tempted to mobilize it for ill. (The Trump Administration incorrectly suggested that it provided authority for the Soleimani strike.) But the bigger task will be to amend the 2001 AUMF so that it is narrow and specific rather than broad and elastic. This means identifying the groups the United States is authorized to fight and excluding the statute’s application to all others. It means providing that Congress must approve any expansions of the list. And it means requiring that the authorization be renewed every two or three years so the war cannot continue forever on autopilot without congressional and public scrutiny. These are projects reformers could pursue during a second Biden term, if there is one. (A second Trump Administration would require an entirely different strategy.)

Finally, restoring a healthy balance between the political branches when it comes to war powers will require long-term structural reform. The bills introduced in the House and Senate in the last Congress (and now reintroduced in the House) would go a long way toward doing exactly that by putting executive branch adventurism on a much tighter leash—particularly through the threat of an automatic funding cutoff for unauthorized conflicts that continue past the statutory deadline.

The era of ending endless wars may have ended, but the need for war powers reform has not. Proponents were right to push for reform when they had the political wind at their back, and they would be wise to keep up the fight even as that wind has shifted. Waiting will only bring new misadventures to remind us why we pressed for reform in the first place.

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Stephen Pomper is International Crisis Group’s chief of policy. During the Obama Administration, he served as special assistant to the President and senior director for Multilateral Affairs and Human Rights at the National Security Council.

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