The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, an unlikely coalition of senators introduced a bipartisan bill that would impose significant curbs on presidential power to initiate armed conflict and declare "national emergencies." Neither idea is entirely new. But this proposal is distinctive because of its broad reach, and its combining of the two issues in one bill. The Washington Post summarizes the bill's war powers provisions:
I support nearly all of the above, and have long argued for a reassertion of congressional power in this field, most recently in this Washington Post op ed, published in March. For what it is worth, I have maintained that position under both Republican and Democratic administrations.
While the three senators are right to seek total repeal of the 1957 and 1991 AUMFs (both of which are moribund, anyway) and the 2002 Iraq AUMF (aimed at Saddam Hussein's long-defunct regime), I would prefer to revise and narrow rather than completely repeal the 2001 "War on Terror" AUMF, as I think there are good reasons to continue military operations against some radical Islamist groups in the Middle East. I am also not sure what to make of the arms sales provisions.
But the overall thrust of the proposal strikes me as sound. There is a strong case for limiting presidential power to initiate conflict on both constitutional and pragmatic grounds. I have summarized them in many past writings, such as here and here.
The bipartisan proposal would also impose tight constraints on presidential powers to issue "national emergency" declarations, like the one Donald Trump used to divert funds for his border wall project:
Typically, it is difficult for Congress to come up with veto-proof majorities to block presidential action. That was also the case in 2019, when Trump declared a national emergency along the U.S.-Mexico border, to enable him to divert billions of dollars in military construction funds by fiat to build a wall. The new bill from Murphy, Lee and Sanders would curtail any national emergency that Congress does not approve within 30 days, and it would limit Congress's authorizations of such emergencies to one year at a time, with a total limit of five years.
Soon after taking office, President Biden revoked Trump's 2019 border wall emergency declaration. That ended Trump's legally dubious diversions of military funds to build the wall. An appropriations bill Congress enacted in December 2020 imposes severe limitations on any future funding diversions of the same type.
But the broader danger of presidential emergency declarations remains. As currently understood, the National Emergencies Act (NEA) gives the president broad power to declare emergencies at will, thereby granting himself indefinite authority to invoke an extraordinarily wide range of powers - including some very scary ones, such as a potential internet "kill switch," testing biological weapons on unwilling test subjects, and much else.
I have argued there are substantive limits to what qualifies as an "emergency" under the NEA. But it is hard to say whether courts will accept that position, or whether they would instead defer to the president's judgment of what counts as an "emergency."
The bipartisan proposal would not fully revamp the NEA. But it would at least eliminate the dangerous situation under which, once a president declares an emergency, it lasts indefinitely unless and until Congress can assemble an improbable veto-proof majority to repeal it, or the president himself decides to end it. The proposal does leave room for unilateral presidential action for a 30 day period, which should be enough time for Congress to act if there really is a need for more extended emergency powers.
On both war initiation and emergency powers, I would ask partisans to reflect on the long-term implications. If you are a Democrat and you trust Biden to wield such sweeping powers, do you similarly trust the next Republican president? Republicans who were happy to see Trump use them should ask whether they feel the same way about Biden - or Kamala Harris should she become president in the event of Biden's incapacity or his choosing not to run for reelection in 2024. If you think the opposing party can't be trusted to wield such authority, that's a strong argument against giving it to the president in the first place.
I am no fan of Sen. Bernie Sanders, particularly his "democratic socialism." I also have substantial (though less sweeping) differences with Chris Murphy and Mike Lee (the other two Senate sponsors), as well. But the three of them are largely right on this set of issues, and deserve credit for trying to move the ball.
Their proposal isn't perfect. It also faces long odds against passage. While the Biden administration has previously endorsed some of the ideas it contains, including revamping the AUMF system, no president really likes constraints on his own powers. But the fact that it is being taken seriously is at least a step in the right direction. Hopefully, there will be more.