Bipartisan Bill Would Limit Presidential War Powers and Emergency Declarations

The bill is the most far-reaching recent proposal of its kind.

Ilya Somin |The Volokh Conspiracy | 7.20.2021 6:04 PM

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:

A bipartisan group of senators unveiled legislation Tuesday to give Congress a more active role in approving arms sales, authorizing the use of military force and declaring national emergencies, in an across-the-board effort to claw back national security power from the executive branch.

The bill aims, for the first time, to define what type of "hostilities" require a president to seek congressional approval before committing military resources; establish expiration dates for national emergencies and military authorizations; and automatically curtail funding for any operation a president continues without explicit congressional support….

The comprehensive measure imposes more stringent restrictions than current law does, and comes as Washington grapples with whether and how to repeal long-running authorizations for use of military force, or AUMFs, including those passed nearly two decades ago to greenlight U.S. military operations in Iraq and Afghanistan…..

It would define "hostilities" as any operation involving the use of force, remotely or directly — superseding the unofficial custom of administrations interpreting the law as applying only when there are combat troops on the ground. It also would shorten the time that presidents have to engage in those hostilities from 60 to 20 days and automatically terminate funding for an operation if a president fails to secure congressional support for the venture by that deadline….

The legislation seeks to impose similar authority over how administrations conclude arms sales and declare national emergencies; it would require the president to secure affirmative votes from Congress before finalizing such sales, instead of leaving it to lawmakers to come up with veto-proof majorities on tight timetables to block them….

The issue came to prominence earlier this year after lawmakers were alerted to a $735 million sale of munitions to Israel in the midst of its bombing campaign in Gaza. Sanders was one of the leading voices raising an alarm — but because the notification requirements were minimal, it came too late to do anything about it.

While the proposed legislation would not have blocked that sale, as it does not impose a requirement for preliminary congressional approval of transactions involving NATO countries and other designated allies, it would require administrations to seek permission for similar transactions to other countries, such as last year's $23 billion sale of F-35 fighter jets, Reaper drones and other military equipment to the United Arab Emirates and other nations. The bill also proposes elongating the window under which Congress may review sales to allied nations from 15 to 20 days….

The bill weighs in more specifically on existing war powers as well, by seeking to sunset four active authorizations related to military operations in the Middle East within 180 days of passage. While two of those are noncontroversial — Democrats and most Republicans support repealing the 1991 authorization approving the deployment of troops to the Gulf War and the 1957 authorization allowing presidents to use force to stop the spread of communism in the region — the others are not.

The two parties are divided over whether to repeal the 2001 AUMF that Congress authorized in the wake of that year's Sept. 11 terrorist attacks. Republicans argue it is vital to maintaining active operations against groups that continue to pose a threat to the United States, while most Democrats acknowledge it needs to be updated or replaced.

Although President Biden has declared his support for ending the 2002 AUMF that enabled the 2003 Iraq War, efforts to repeal that measure have similarly run aground in the evenly divided Senate, after the chamber's Republicans insisted on a more painstaking review of its continued significance.

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.