Will Congress Cede Its War-Making Authority to Trump?

A new resolution would finally put many long-running conflicts on a sound legal footing—but would grant the executive branch sweeping powers in the process.

General Joseph Dunford, chairman of the Joint Chiefs of Staff, testifies before the House Armed Services Committee (Yuri Gripas / Reuters)

On Tuesday, the Senate Foreign Relations Committee will take up a proposed authorization for the use of military force. This initiative not only requires Congress to take on renewed responsibility for America’s 15-year struggle against the Taliban and Al Qaeda. It has the great merit of requiring the House and Senate to take a clear stand, for the first time, on Obama’s decision to embark on a campaign against the Islamic State. Nevertheless, the new AUMF goes much too far in permitting President Trump to escalate the war on terror to new heights without the consent of Congress and the American people.

“When I voted in 2001 to authorize military force against the perpetrators of the Sept. 11 attacks, I had no idea I would be authorizing armed conflict for more than 15 years and counting,” Republican Senator Jeff Flake said in introducing the AUMF resolution. If there is to be any serious democratic debate on the best way forward in the United States’s unending wars, it will have to come out of Congress—precisely the place where the Founders intended it to happen. Flake deserves a lot of credit in calling on his fellow Republicans to take their constitutional responsibilities seriously. The same is true of his leading co-sponsor, Senator Tim Kaine. As Hillary Clinton’s running-mate, Kaine is particularly well-placed to urge his fellow Democrats to halt their partisan warfare and seriously debate the terms of a new AUMF.

The need is especially compelling, given the way in which the 2001 AUMF has been transformed since its enactment. When it was passed in late September 2001, it granted President George W. Bush the limited authority to target “nations, organizations, or persons” who “aided” in the attacks on the Pentagon and World Trade Center. Despite the passion and patriotism of the moment, Congress explicitly turned down Bush’s request for the sweeping authority “to deter and pre-empt any future acts of terrorism … against the United States.”

Nevertheless, executive-branch lawyers under Presidents Bush and Obama reinterpreted the narrow language of the 2001 AUMF to provide the sweeping power to preempt future attacks which Congress explicitly denied the presidency in 2001. ISIS, for example, can only be traced back to a group that came into existence in 2003—and yet Obama didn’t get a new authorization from Congress when he began his war against it in 2014.

The new resolution not only fills this gap, but requires Congress to take responsibility for presidentially initiated wars against other terrorist groups operating in Afghanistan, Iraq, Syria, Somalia, Libya, and Yemen—specifically authorizing the president to designate the Nusra Front, al-Shabab, al-Qaeda in the Arabian Peninsula, and the Khorasan Group as legitimate military targets. Of course, the merits of each of these initiatives is open to serious argument, and Congress may well impose new conditions on each or all of these authorizations as the debate moves beyond the Senate Committee.

The real problem with the AUMF involves the way it enables Trump to launch new wars against poorly defined “terrorist groups” in the years ahead. Key provisions of Flake-Kaine destroy the system of checks and balances that Congress put into place in 1973 to safeguard its constitutional role as the ultimate authority over the question of war and peace.

During the Vietnam War, Richard Nixon directly challenged this authority—asserting that he could continue the Vietnam War even after Congress had repealed the Gulf of Tonkin Resolution. Leaders of both parties responded with the War Powers Resolution, mustering the two-thirds majorities required to overcome a presidential veto. The War Powers Resolution created a new system of checks and balances to make it impossible for the commander-in-chief to make Nixonian claims in the future. It required presidents to gain congressional consent within 60 days of their decision to initiate hostilities; and if they failed to convince the House and Senate that their war was justified, they were obliged to withdraw their forces from the field within the next 30 days.

The Flake-Kaine proposal would release President Trump from this burden. It would allow him to designate a new terrorist group as a military target, and continue his war against it so long as Congress fails to vote to override that decision within 60 days. If both the House and Senate fail to veto the new venture within this short deadline, Trump could continue his war for the rest of his term—and potentially to expand it to those he designates as terrorists in Africa, Asia, or even Latin America.

Worse yet, the new initiative would grant Trump’s successor the same power. While it expires after five years, it can be extended for five more if either House or Senate doesn’t reject a proposed extension when the initial grant of authority is about to run out.

While Richard Nixon denounced other aspects of the War Powers Resolution, even he did not challenge the constitutionality of its time-clock. This provision was immediately invoked by Gerald Ford, and has been repeatedly reaffirmed since then—most recently, by the Obama administration. Only executive-branch lawyers for George W. Bush, in the dark days after September 11rh, have ever directly challenged its legitimacy—most notably, in an opinion written by John Yoo and signed by Assistant Attorney General Jay Bybee. Their isolated views should not be resurrected in the ultimate AUMF emerging from the Senate hearings.

But the problematic features of the Flake-Kaine initiative should not obscure its one great merit. After all, it is premature for Congress, or the American people, to come up with a definitive solution to the United States’s world-wide military predicaments. The radical character of the new AUMF should provoke a broad-ranging democratic debate—in the Senate and beyond. This is precisely what is required right now to prepare the way for the House and Senate to confront a range of AUMF options in 2018—enabling it to become a central question for voters in the November elections next year.