By Jacob Winton
On July 20, 2021, Senators Bernie Sanders (I-Vt.), Chris Murphy (D-Conn.), and Mike Lee (R-Utah) introduced the National Security Powers Act of 2021[1] (“NSPA”), a bipartisan bid to reign in the war powers of the Executive Branch. The bill, which would impose substantial limitations on presidential power,[2] would allow “Congress [] to reclaim its rightful role as co-equal branch on matters of war and national security” and “make sure that there is a full, open and public debate on all major national security decisions” according to Senator Murphy.[3] The effort seeks to reverse what many view as the “steady erosion of Congress’s power to prevent, confine, or even direct military action and [the] steady accretion of executive discretion and control.”[4] This shift in the balance of power has been driven in large part by the “Presidentialist” perspective, an approach to presidential war power in which the executive is “constrained in its ability to engage military force abroad only by Congress’s appropriations and impeachment powers.”[5]
But the historical record leaves little doubt as to who the framers of the Constitution believed should decide when and where to wage war.[6] Pursuant to the Constitution, the President directs the armed forces as commander in chief,[7] but “Congress alone has the power to declare war and fund military operations.”[8] Prior to World War II, the branches of government adhered closely to these guidelines—American military action was routinely preceded by a formal declaration, issued by Congress in response to a request from the President, authorizing the President to engage in military operations against a foreign nation.[9] However, despite once being deemed a “necessary prerequisite” to military action, “declarations have fallen into disuse” since World War II.[10] More recently, presidents have become increasingly comfortable engaging in military action abroad without direct congressional approval.[11]
The last formal declaration of war in the United States was issued in 1942 against Romania.[12] Since then, Congress’s role has withered as the system evolved from a collaborative decision-making process between the Legislative and Executive Branches into “an interagency process subordinating military force within a foreign policy system under the Executive Branch.”[13] So far, Congress has failed to muster a response sufficient to rebuke the encroachment of the Executive Branch. For example, after the war effort in Vietnam failed, Congress overrode President Nixon’s veto to pass the War Powers Resolution of 1973[14] under the mistaken belief that it would restore “collective legislative-executive judgment in the war-making process.”[15] Ultimately, however, the effect of the War Powers Resolution “has been minimal.”[16]
During the 21st century, the accumulation of executive war power has accelerated.[17] Following the 9/11 terrorist attacks, President George W. Bush’s approach to executive war power was rooted in the “assert[ions] of broad, uncheckable power” by former Presidents Nixon and Reagan.[18] The Bush White House provided fertile ground for the unitary executive theory, an expansive view of executive power “that had been percolating in the conservative movement for years” and was brought to national prominence in large part by Vice President Dick Cheney.[19] In the aftermath of 9/11, the theory became a “convenient tool seized upon in a time of crisis”[20] to justify unilateral presidential military initiatives that flouted international treaties, violated domestic law, and “led to a widespread government policy and practice of torture.”[21]
Despite the disapproval of both the public and the Supreme Court,[22] the continuing exercise of military power without express authorization has “normalized the unbalanced relationship between Congress and the Executive.”[23] Modern presidents have resorted to the circular and self-strengthening argument that military action in the absence of congressional approval should be “accepted by mere virtue of past practice.”[24] In 2011, for instance, the Obama administration Department of Justice qualified President Obama’s use of military force in Libya[25] without congressional approval as constitutional by insisting that “the historical practice of presidential military action without congressional approval precludes any suggestion that Congress’s authority to declare war covers every military engagement, however limited, that the President initiates.”[26] Moreover, in the wake of Congress’s response to 9/11, presidents have used the Authorizations for the Use of Military Force passed in 2001[27] and 2002[28] to justify military action years later “against terrorist organizations that did not exist at the time of the 9/11 attacks, are active in regions far removed from Al Qaeda’s areas of operation, and that have no known affiliation with Al Qaeda,” effectively bypassing Congress altogether.[29]
It is against this backdrop that Senators Sanders, Murphy, and Lee have introduced the NSPA. While the Presidentialists welcome the expansion of executive war power, the NSPA represents the concern that unchecked executive power poses a grave threat to our constitutional system.[30] On a practical level, Senator Lee explained that the NSPA meets an urgent need to restore accountability because “America’s global standing, treasure, and brave service members are being lost in conflict’s the people’s legislators never debated.”[31] This latest proposal may or may not become law, but unless Congress can reclaim its constitutional role, the growing concentration of war powers in the executive, a danger the framers were keenly aware of, threatens to become a permanent feature of our government.
[1] S. 2391, 117th Cong. (2021).
[2] Notably, the NSPA would repeal all existing war authorizations and defund any military operation not explicitly greenlit by Congress, make it easier for Congress to reverse presidential foreign policy decisions, and roll back presidential access to emergency national security powers. Andrew Desiderio, Unlikely Senate Alliance Aims to Claw Back Congress’ Foreign Policy Powers ‘Before It’s too Late’, Politico (July 20, 2021, 6:00 A.M.), https://www.politico.com/news/2021/07/20/bipartisan-senators-congress-war-powers-500214.
[3] Id.
[4] Mark E. Brandon, War and the American Constitutional Order, 56 Vand. L. Rev. 1815, 1847 (2003).
[5] Jake Novack, Note, Exploring Executive War Power: The Rise and Reign of the Presidentialist Interpretation, 53 Cal. W. L. Rev. 247, 249 (2017).
[6] See, e.g., Ronald J. Sievert, Campbell v. Clinton and the Continuing Effort to Reassert Congress’ Predominant Constitutional Authority to Commence, or Prevent, War, 105 Dick. L. Rev. 157, 159 (2001) (citing debate transcript from Constitutional Convention’s Committee on Drafting to demonstrate broad agreement that the executive cannot “commence war”); see also The Federalist No. 69 at 465 (Alexander Hamilton) (Cook ed. 1961) (distinguishing the power of the President as “much inferior” to that of the British King because it does not extend to “the declaring of war and to the raising and regulating of the fleets and armies”).
[7] U.S. Const. art. II, § 2.
[8] Donald A. Dechert, III, Note, Perpetual Warfare: Proposing a New American Constitutional Amendment for the War Powers, 52 Val. U. L. Rev. 457, 482 (2018); see also U.S. Const. art. I, § 8, cl. 18.
[9] Id. at 461–62; see also, e.g., Joint Resolution of December 12, 1941, Pub. L. No. 77-331, 55 Stat. 796 (formally declaring war on Germany during World War II).
[10] Jennifer K. Elsea & Matthew C. Weed, Cong. Rsch. Serv., RL31133, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications 23 (Apr. 18, 2014).
[11] See, e.g., Novack, supra note 5, at 249–50 (“[T]he Obama Administration’s military actions in Libya and operations against al-Qa’ida (including its affiliates, associated forces, and successors) in Yemen, Somalia, Iraq, and Syria occurred and continue without explicit congressional authorization”).
[12] Elsea & Weed, supra note 10, at 4.
[13] Dechert, supra note 8, at 462.
[14] 50 U.S.C. §§ 1541–48.
[15] Michael J. Glennon, The War Powers Resolution Ten Years Later: More Politics than Law, 78 Am. J. Int’l L. 571, 571 (1984).
[16] Brandon, supra note 4, at 1855. Since its passage, the War Powers Resolution “has been ignored or flouted far more frequently than followed” and even when presidents have complied with its requirements, “they have sometimes done so without conceding the existence of a constitutional obligation.” Id.
[17] See, e.g., Richard E. Levy, Presidential Power in the Obama and Trump Administrations, 87 J. Kan. Bar Ass’n 46, 47 (2018) (“One consistent trend since the time of the founding has been the expansion of presidential authority. In recent years, this trend has accelerated at an exponential rate, propelled by the war on terror and the dysfunction of our hyperpartisan Congress”).
[18] Erwin Chemerinsky, The Assault on the Constitution: Executive Power and the War on Terrorism, 40 U.C. Davis L. Rev. 1, 7 (2006).
[19] Novack, supra note 5, at 268. Before ascending to the vice presidency, Cheney offered a “vociferous defense of executive prerogative” as Wyoming’s senior representative in the House in response to “outright congressional fury” at the Nixon administration for its defiance of congressional mandates during the Iran-Contra affair. Id. Later, as Vice President, Cheney “staffed the White House with individuals who shared his belief that the executive branch was aptly suited for expansive power,” thus setting the stage for the full embrace of the unitary executive theory in the aftermath of 9/11. Id. at 271.
[20] Id. at 272.
[21] Michael P. Scharf, The Torture Lawyers, 20 Duke J. Compar. & Int’l L. 389, 391 (2010).
[22] See, e.g., Gregory P. Noone, The War Powers Resolution and Public Opinion, 45 Case Western Rsrv. J. Int’l L. 145, 152–54 (2012) (detailing decades of public opinion polling demonstrating broad agreement that congressional approval should be required for the President to take military action); see also, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (rebuking the Bush administration’s assertion of the authority to deprive detainees at Guantanamo Bay of access to federal courts as an attempt to “turn our system of checks and balances on its head”).
[23] Novack, supra note 5, at 272.
[24] Id. at 272–73.
[25] President Obama has since stated that our military action in Libya “didn’t work” and that “failing to plan for the day after” was his worst mistake as president. Dominic Tierney, The Legacy of Obama’s ‘Worst Mistake’, The Atlantic (Apr. 15, 2016), https://www.theatlantic.com/international/archive/2016/04/obamas-worst-mistake-libya/478461/.
[26] Authority to Use Military Force in Libya, 35 Op. O.L.C. 20, 31 (2011).
[27] See Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (authorizing military action against those responsible for the 9/11 terrorist attacks).
[28] See Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498.
[29] Levy, supra note 17, at 47.
[30] Chemerinsky, supra note 18, at 16 (“The framers of the Constitution feared executive power the most”).
[31] Desiderio, supra note 2.
Post image by Daniel Mennerich on Flickr