Rand Paul

Congress Needs to Reclaim Its War Powers, Argue Constitutional Scholars at Senate Hearing

The proposed new Corker-Kaine AUMF would give even more power to the president to wage war against whoever he wants with Congress essentially powerless to curb him.


"President Trump has now joined his two immediate predecessors in substituting the judgment of the president alone for the judgment of a Congress charged by the Constitution with the sole authority to decide whether, where, and against whom to go to war," said Christopher Anders of the American Civil Liberties Union (ACLU) in a hearing yesterday before the Senate Subcommittee on Federal Spending Oversight, chaired by Sen. Rand Paul (R-Ky.).

Photo by Gage Skidmore on Foter.com / CC BY-SA

Anders joined two other constitutional scholars in an attempt to convince the senators listening to oppose S.J. Res. 59, known as the Corker-Kaine authorization for use of military force (AUMF), introduced by Sen. Bob Corker (R-Tenn.) with Sen. Tim Kaine (D-Va.).

Corker-Kaine would reset the legal authority for the Forever War on Terror granted by two earlier AUMFs in 2001 and 2002. Those AUMFs, as Anders spelled out, "squarely focus[ed] on those who planned and carried out the 9/11 attacks and those who harbored them" but "has been invoked 37 times for conflicts occurring in 14 countries…The 2001 AUMF is the claimed authority for the use of force even against groups that did not exist on 9/11 and are at odds with core al Qaeda."

Corker-Kaine, from Anders' perspective, would be even worse. "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," he said. "Not only would it almost irretrievably cede to the Executive Branch the most fundamental power that Congress has under Article I of the Constitution—the power to declare war—but it also would give the current president and all future presidents authority from Congress to engage in worldwide war, sending American troops to countries where we are not now at war and against groups that the President alone decides are enemies."

That proposed new AUMF would instantly codify that currently ongoing wars are presumptively approved, whether or not they legitimately fit the demands of the original AUMFs; empower the president to start wars in new countries non-defensively without requiring a vote from Congress, though Congress could decide not to allow it retroactively; and the AUMF would allow the president to unilaterally add any new "associated force" with which we shall then be at war, including potentially U.S. persons on U.S. soil.

Attempts to second-guess the president under Corker-Kaine would be vetoable bills, thus requiring a likely impossible two-thirds vote in both houses to reverse the president's war-making decisions.

As Jonathan Turley, a law professor at George Washington University, pointed out in his written testimony to the subcommittee, the power of the purse is essentially meaningless given modern budgetary practices. For example, for President Obama's Libyan intervention "the Administration funded an entire military campaign by shifting billions in money and equipment without the need to ask Congress for a dollar. It was a war essentially funded from loose change owing to the failure of Congress to fully carry out its constitutional duties over appropriations."

Turley, who was lead counsel in a failed suit fighting for congressional war powers in court over Obama's Libya adventures, said that Corker-Kaine ultimately would serve "to give members [of Congress] a statutory shield from their constitutional obligations over war making," an obligation Turley considers a "moral imperative" because "if there is a sacred article in the Constitution, it is Article One, Section Eight," which clearly defines making war as one of Congress' powers.

Andrew Napolitano, Fox News senior judicial analyst, professor of constitutional law, and longtime New Jersey Superior Court judge, stressed that separation of powers was the secret sauce of the U.S. constitution, and that Corker-Kaine would make a mockery of it. "The Framers never imagined," Napolitano said in his written testimony, "that one branch of government would abdicate its authority and cede an essential power to another branch since such a giveaway would be unconstitutional."

Turley reminded the subcommittee that when one person at the United States' constitutional convention suggested giving war-making power to the executive, he couldn't even get anyone to second the motion. The desire to avoid political blame or responsibility on the part of the legislature, Turley noted, led them to begin evading that responsibility before the 18th century was even over when John Adams' administration sought war with France. Despite all the wars we've waged, only five of them (the last in 1942) involved constitutionally obligatory declarations from Congress.

Congress' unwillingness to stand up for its war-making prerogatives, Turley argues, allows executive branch apologists in the Office of Legal Counsel at DOJ to "claim a type of expanded authority by default…Article I could now be interpreted through a 'historical gloss' of past unilateral military actions and the absence of congressional opposition." This has made "congressional acquiescence into a critical element of constitutional interpretation" that allows the executive to assume powers willingly abandoned by the other branches are powers no longer worthy of legal respect.

The scholars speaking in opposition to Corker-Kaine made their complaints bipartisan, calling out both Barack Obama for his attacks on Libya and Donald Trump for his attacks on Syria as examples of unconstitutional presidential power grabs, the sort Corker-Kaine will not solve.

Sen. Bernie Sanders (I-Vt.), though not a member of the subcommittee, was an invited guest to the hearings and stood up for congressional power over war for the "one very simple reason that Congress is…most accountable to the people," and that "it is time for us to reassert that authority and to start asking very tough questions about the wars we are in currently."

Sanders stressed that though they were being spoken to by constitutional scholars and lawyers, that this was no "abstract discussion…our abdication of congressional responsibility over war has had incredibly dire and horrific consequences for people around our country and in fact the world."

Sen. Paul pointed out that disconnecting the war-making power from the people's representatives led to a situation where we are involved in military activities, such as in Mali, that even most members of Congress literally have no idea are happening.

Sen. Gary Peters (D-Mich.), ranking minority member of the subcommittee, pointed out that the Trump administration is hoping to expand its freedom from Congress to allow the secretary of energy to develop new nuclear missiles without specific congressional sign-off.

Keeping war powers out of the hands of the president, as Napolitano stressed, was one of founding father James Madison's primary goals. "In no part of the constitution is more wisdom to be found," Madison wrote, "than in the clause which confides the question of war or peace to the legislature, and not to the executive…the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. ….The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace."

The very Senate he was speaking to, Turley said, is essentially to blame that Madison would weep over how his brainchild has dealt with war-making powers. "We find ourselves at this ignoble point not by accident," Turley rightly notes, "but through decades of concerted effort by Congress to evade the responsibility for the most important decisions committed to it by the Framers."

Anders noted with alarm that Corker-Kaine would also presumptively expand the president's illegitimate power under the 2012 National Defense Authorization Act (NDAA) to indefinitely detain people "by adding the new AUMF as a basis for the military to capture and imprison, and under some circumstances, imprison suspects indefinitely without charge or trial. The Corker-Kaine AUMF, like the NDAA detention provision itself, has no statutory prohibition against locking up American citizens or anyone picked up even in the United States itself."