by Gabrielle Jorgensen
Following Secretary of State John Kerry’s hearing on December 9, the Senate Foreign Relations Committee authorized the administration to use military force against the Islamic State. The move comes as a shock to no one and represented a symbolic check on executive war powers before the Republican-dominated legislative session began in January. The bill expired and the 114th Congress must now reconsider the issue.
Congress last passed an Authorization for Use of Military Force following the 9/11 terrorist attacks and military intervention in Afghanistan. The proposed new AUMF for the Islamic State puts a considerable constraint on President Obama’s abilities as Commander-in-Chief. In a stipulation supported primarily by Senator Tim Kaine, D-Va., and his fellow Democrats, as well as the noninterventionist Senator Rand Paul, R-Ky., the new AUMF prohibits the administration from deploying ground troops to combat the Islamic State. Despite President Barack Obama’s repeated assurances that the conflict will not escalate to involve “boots on the ground,” even the historically pacifist State Department expressed reservations about the restriction. The administration is likely to appeal this decision to next session’s Republican Senate, hoping that the new crop of hawkish legislators will understand its need to entertain a wider range of defense options.
The Senate Committee’s proposed AUMF also requires the President to formally report to Congress with updates every 60 days, a reflection of Kaine’s ongoing effort to reform the process of military engagement. Last January, Kaine and Senator John McCain, R-Az., introduced their War Powers Consultation Act of 2014, which imposed stricter congressional consultation requirements on the president and strengthened the much-ignored War Powers Resolution of 1973. The bill remains at odds with most conservative Republicans, who believe that national security falls primarily under the purview of the Commander-in-Chief.
How the legislature and executive should balance war making and national security from a constitutional standpoint is wrapped up in an argument about original intent. Conservative scholars, such as John Yoo, have interpreted the constitution as a manifestation of what John Locke deemed the “federative power.” The executive assumes the role of head-of-state and must be unencumbered in conducting foreign affairs. In a similar vein, Kaine’s legislative opponents have maintained that too many legislative roadblocks could compromise national security. While Congress enjoys a constitutionally enumerated power to declare war, it refers to the type of formal declaration that the U.S. has not issued since 1942, when it officially declared war on Bulgaria, Hungary, and Rumania. As Congress holds the sole authority to fund a military conflict, they argue, it presents an intrinsic check on presidential action without need for excessive formal consultations and authorizations.
In the dangerous landscape of the post-Cold War era, this logic falls short. The U.S. has entered the age of military action without boots on the ground, and formal war declarations have become increasingly difficult, since our adversaries are no longer state actors. The tension between the power of Congressional war declaration and the president’s Commander-in-Chief status is an illusion. The bureaucracy controls almost all intelligence-gathering via the CIA; engages in strategic and often secret diplomacy; and conducts covert air and ground operations, such as its drone program.
As military engagement shifts further away from traditional use of the armed forces, congressional authorization becomes less relevant to the administration. In the past 60 years, congressional authorization has influenced presidential foreign policy action less and less. While President Franklin Roosevelt and his predecessors obtained formal war declarations from Congress, the postwar world gave rise to bolder, more unilateral actions in the name of national security, from Truman’s nationalization of steel to Nixon’s secret bombing of Cambodia. Despite the reactionary War Powers Resolution, the presidency has become increasingly imperial with respect to foreign affairs.
In an area that generally falls outside the Supreme Court’s jurisdiction – with some notable exceptions – Senator Kaine is right to be concerned about the weakness of the existing legislation. The proposed stipulations in his War Powers Consultation Act would address some of the existing War Powers Resolution’s inadequacies without coming down hard on either side of the constitutional debate. For example, the act requires a consultation period and a congressional vote after 30 days of conflict, which shows little difference on paper from the original resolution.
More importantly, it presents an updated definition of “significant armed conflict,” which has blurred since the enactment of the post-9/11 AUMF. Kaine’s proposal also addresses the executive’s intelligence monopoly, a contributor to disproportionate presidential war powers. The bill would create a permanent, bipartisan legislative staff that would be granted access to relevant CIA data. Together with its establishment of a joint consultation committee, the inclusion of permanent staff would also allow the balance of war powers to be a continuous focal point rather than a periodic debate.
The 114th Congress is unlikely to support either the War Powers Consultation Act or the new AUMF’s prohibition of ground combat, but both propositions should serve as reminders that an age of terrorism does not necessitate unchecked presidential action overseas.