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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-SAPhoto 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."

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  • Fist of Etiquette||

    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...

    Yes but it would also cede the blame for disastrous wars to come, while at the same time allowing Congress to retain its bitching rights. Bonus to those legislators who have defense contractors in their districts.

  • Cynical Asshole||

    There's really no downside for them to do this. It's not like the people actually give a shit about them abdicating their responsibilities, 99% of them continue to be re-elected until they die in office, and now they can just blame the president if he decides to start an unpopular war. It's win-win for them. The only losers are us and the poor schmucks who will be sent to fight the God-King's wars of choice.

  • A Thinking Mind||

    It's the height of moral cowardice. You're willingly abdicated responsibility because you fear being wrong. It's more comfortable for them to be powerless than to concern themselves about whether or not they are right.

  • Ken Shultz||

    "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."

    It's certainly the linchpin of democracy.

    Here's what your elected representatives do: Article I, Section VIII

  • tlapp||

    They ceded the authority to coin money. Now cede this authority. New plan, get elected stay in office for a career. Vote on placing statues and libraries and then just become part of the peanut gallery on the important issues.

  • KBeckman||

    I don't understand how they can cede a constitutional power without an amendment.

  • Don't look at me.||

    We have to stop voting for the same people.

  • I am the 0.000000013%||

    I always vote for libertarians, so you can excuse me from your dictum. :)

  • Chipper Morning Baculum||

    This is the fundamental problem with government. The costs of wars are externalized away from those that start them. The whole concept of declaring war has no place in a libertarian philosophy. If someone invades your property or attacks you, you defend yourself or delegate that to someone that can do it for you. That is all.

  • damikesc||

    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.).

    Nice of them to finally notice the problem. Shame they didn't notice it for the last decade-plus.

    But the issue wasn't that the AUMF wasn't broad or long-lasting enough. They are attacking the thoroughly wrong problem.

    Why is Congress so scared to reclaim power it has lost over the years?

  • tlapp||

    They don't want power over anything but money. Making hard decisions is no fun and might interfere with a 30 year career in office.

  • Jerryskids||

    The checks and balances written into the Constitution were predicated on co-equal branches of government jealously guarding their powers and prerogatives, it doesn't work when the political class is more interested in the trappings of power than with the real responsibility of exercising power. Just as the President embodies the dual roles of both Head of State and Head of Government, we need Congressmen to serve the role of actual governors because Lord knows they've got the role of posturing statesmen down pat, moral scolds with their high-minded, fine sounding rhetoric that amounts to nothing more than empty words.

  • Cynical Asshole||

    "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."

    Isn't Corker one of the "never Trump" Republicans, and Kaine, of course, was Hillary's running mate? Now they want to hand him (and all future presidents, whoever they may end up being) the authority to wage war on anyone they decide are enemies?

    That's a bold strategy...

  • scJazz||

    Indeed the irony of this fact is astonishing.

  • Cynical Asshole||

    As FoE points out above though, this will allow them to simply blame Trump if/ when he starts an unpopular war. And it's not like their constituents who elect and re-elect them will know or care that war making powers are supposed to lie with Congress, not the president, and the only reason Trump has the authority to start wars is because assclowns like Corker, Kaine, and anyone else who votes for this AUMF turd gave him the authority in the first place.

    It's brilliant really, from a purely Machiavellian, nth dimensional chess point of view.

  • This Machine Chips Fascists||

    Introducing the Permanent Executive Action Concerning Enemies, or PEACE bill.
    [text]
    We have always been at war with [POTUS authorized to insert nation/state, person, activity or inactivity].

  • gormadoc||

    Eh, Hihn said these wars were constitutional without Congressional approval and he met the Founders shortly after he started his career, so I think he knows what he's talking about.

  • loveconstitution1789||

    I think only a Declaration of War will suffice for US military action, except to defend the USA from sneak attack since there is not enough time to get a DoW when fighting off a sneak attack.

    Congress gave up this power by giving Booosh, Obama, and Trump AUMF which is a stupid surrendering of Congress' war powers.

  • Eric||

    "I think only a Declaration of War will suffice for US military action, except to defend the USA from sneak attack since there is not enough time to get a DoW when fighting off a sneak attack."

    Wait...are you advocating for a non-literal interpretation of the Constitution? Cuz I don't remember seeing that second clause in the Holy Document you heathen!

  • jdgalt1||

    This bill would tear up the Constitution in several ways more important than giving Congress's power to declare war over to the president. That "associated force" provision amounts to a power to attaint as traitors any group of Americans that the president doesn't like.

    On the bright side, that fact ought to make it easy to get the bill overturned by the courts -- if the president doesn't just ignore any court order that says he can't do whatever he wants, as Andrew Jackson did and got away with it.

    We appear to have a King here, folks, and that's been true since 2001. Now, what do we do about him?

  • Eidde||

    "the Senate Subcommittee on Federal Spending Oversight, chaired by Sen. Rand Paul (R-Ky.)."

    Will anything come of this, or is it a fancy title without authority they've given him?

  • BYODB||

    Why does anyone quote anyone who works for the ACLU anymore? They gave up all pretense of giving a shit about civil liberties.

  • This Machine Chips Fascists||

    They have an emotional blind spot for 2A, but do good work in other areas.

  • BYODB||

    Or did, at one time.

  • Eric||

    Shhhh. ONLY the 2A matters round these parts son. You trying to get yourself hanged or something.

  • This Machine Chips Fascists||

    Deify him! I suggest a virgin birth with signs and wonders for starters.

  • Longtobefree||

    War? What war? We haven't been at war since the late 1940s.
    Our military has been involved in armed conflicts that resulted from treaties ratified by the Senate, but no wars.
    Our military has been involved in armed conflicts assisting the United Nations, based on treaties ratified by the Senate, but no wars.
    The president, as executive, has authority to give direction to the US military in completing responsibilities under ratified treaties.
    Hell of a thing, that NATO treaty.
    Congress is still in charge.

  • Rev. Arthur Ꮮ. Kirkland||

    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 a fucking idiot.

    My objection here is the incredibly stupid formulation of "two immediate predecessors", which inherently implies that George W. Bush was worse about it than Bill Clinton.

    Now, it's certainly reasonable to claim that George W. Bush's actions went beyond what the Constitution allows. But given comparisons to Obama in Libya/Syria, Clinton in Bosnia/Haiti/Iraq/Serbia, Bush the Elder in Panama, or Reagan in Grenada, he was an outlier in executive restraint and respect for Congress. He sought Congressional authorizations plausibly tantamount to declarations of war and, while he arguably bent one of those authorizations impermissibly wide, didn't quite bend it into an unlimited warrant.

    The accurate phrasings could be either "immediate predecessor" or "six immediate predecessors", but "two" is partisan spin.

  • sarcasmic||

    The article is specifically talking about the 2001 AUMF which kinda limits the scope to "two immediate predecessors."

    Context matters.

  • Naaman Brown||

    The Rev Arthur L. Kirkland and Rev Arthur I. Kirkland silliness is getting tiresome.

    I want my tiresome silliness direct from the source, the genuine original Rev Arthur L. Kirkland.

    All others pale in comparison. None can match that arrogant elitism redux of the one true RALK.

  • Scarecrow Repair & Chippering||

    Not only would it almost irretrievably cede to the Executive Branch the most fundamental remaining power that Congress has under Article I of the Constitution—the power to declare war

    The true most fundamental power of Congress is the purse, but they gave up on that long ago.

  • chemjeff radical individualist||

    So looks like Congress doesn't actually want its warmaking powers. So much for the "world's greatest deliberative body".

  • thisbrucesmith||

    Deliberating is one thing. Actually voting . . ?

  • A Thinking Mind||

    "Jeez, talking is always good, but I'd rather not have to go on record..."

  • Gaear Grimsrud||

    This subject came up at a forum with our local House rep. quite a few years ago. His spin was that because insurance policies don't usually cover acts of god and wars, if congress declared war we'd all lose our coverage. So if the Ruskies dropped a missile on our town and blew my roof off, State Farm could tell me to fuck off. I am not kidding. Better to have a "police action" or a blanket use of force authorization or just let whoever happens to be in the oval office do whatever he wants. Now that's what I call looking out for your constituents.
    Thanks Brian for the article, to Rand Paul for organizing the hearing, and to all of the participants. If this subject got as much coverage as Stormy Daniels somebody might notice. I'm not hopeful.

  • Don't look at me.||

    Needs moar titz!

  • ||

    If Congress ever refuses/fails to pass the military budget bill they pass every four years, it would require the disbanding of most of the US military. Without that declaration of national emergency (which is what it is, constitutionally), most of the military would revert to civilians.

    And it's illegal for civilians to possess things like missiles, most automatic weapons in current issue and hand grenades.

  • MatthewMannn||

    Politics are very weird. But, this gives me a job, and I can write a true. Sometimes I'm writing an essay for https://mcessay.com/ , but more often I've written for the reason.

  • JonFrum||

    If anything needs to be reclaimed, it's the power of the president and congress to decide for themselves what is and isn't constitutional. The Constitution is supreme in the United States, not the Supreme Court. Better to call it the High Court, and let each branch of government decide for themselves just what the Constitution does and doesn't allow. The power to declare war certainly does need to be taken back by Congress, but the power to decide constitutionality is a far greater matter. Why not go for the big one first?

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