For decades, war powers in Washington flowed away from Congress and toward the presidency. The framers of the Constitution wanted to vest the legislature with the power to commence conflict. The executive, they thought, was not “safely to be trusted with it,” and congressional lethargy could be made a virtue for “clogging rather than facilitating war [and instead] facilitating peace.” But Washington moved steadily away from that design, particularly in the last half-century. Now, if it bothers to involve itself in a debate over military intervention at all, Congress typically passes open-ended authorizations for the use of military force, and the president takes it from there — and takes it wherever he likes.
But two congressional hearings this week and recent, encouraging noises from the Biden White House suggest war powers reform might finally be afoot. That’s good news, not only in the procedural sense of a shift toward a more consistent rule of law, but also because it offers an important opportunity to restrain reckless habits of U.S. foreign policy.
The congressional hearings, in the House rules and foreign affairs committees on Tuesday, tread the familiar ground of AUMF reform conversations. AUMFs should not continue indefinitely, argued witness Oona Hathaway, a Yale law professor, because they “become quickly outdated and take on a life of their own without any input from Congress.” Hathaway quoted Alexander Hamilton’s case in The Federalist Papers (No. 26) for obliging the legislature “once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents.”
The last two decades of continuous, costly, and often counterproductive U.S. military action across the greater Middle East (initiated under often implausible cover of AUMFs for the invasions of Afghanistan and Iraq in 2001 and 2002, respectively) illustrate the wisdom of Hamilton’s scheme all too well. Those two AUMFs, both brief and vague, are inadequate in other ways, too. They fail to “define the enemy” against whom force is authorized, Hathaway noted, which gives the president far too much leeway in whom he attacks. Nor do they require regular reporting to Congress on movement, if any, toward concrete goals.
As it stands, extant AUMFs provide no executive accountability or meaningful limits on presidential war-making, and lawmakers are rarely eager to engage in the deliberation Hamilton envisioned. But a few are. Legislation to repeal the 2002 Iraq AUMF, introduced by Rep. Barbara Lee, a California Democrat, has attracted nearly 100 Democratic co-sponsors and a handful of Republicans as well. Freshman Rep. Peter Meijer, a Michigan Republican, described that repeal as “the low-hanging fruit” that should be plucked because it is risky to U.S. security to “have these justifications kind of laying out there waiting for someone’s creative interpretation to do something far from the intent.” Meijer is among the bipartisan sponsors of another bill that, in addition to repealing the 2002 AUMF, would also end active Middle East AUMFs from 1991 and, incredibly, 1957.
Should some of this legislation pass both houses of Congress, the question still remains whether President Joe Biden will sign and curtail his own war-making options. A White House statement early this month said Biden supports repealing outdated AUMFs and replacing them “with a narrow and specific framework that will ensure we can protect Americans from terrorist threats while ending the forever wars.” The devil may be in the details here: What, exactly, is the framework Biden has in mind? The best way to end forever wars is to end them — that is, the best replacement for these outdated AUMFs is nothing. We should repeal all active AUMFs and, instead of crafting new ones, bring U.S. troops home from wars that should have been ended long ago.
Still, as Harvard international relations expert Stephen M. Walt argues at Foreign Policy, even a replacement AUMF could bring some new prudence to U.S. foreign policy going forward: It could at least forestall new wars. It “could give Biden an out when grandstanding hawks try to stampede him into new military adventures,” Walt explains. “If a new AUMF does not permit an action the president opposed, Biden can turn to Congress and say, ‘If you want me to do something, grow some spine and vote a separate authorization for it.’” With a war-weary public, that authorization might be difficult to muster.
That’s a good thing. It’s the facilitation of peace the framers of the Constitution wanted — and which we so desperately need. If this political moment offers a real chance to change how war powers operate in America, it’s a chance we must seize.
Bonnie Kristian is a fellow at Defense Priorities, a contributing editor at The Week, and a columnist at Christianity Today. Her writing has also appeared in CNN, NBC, USA Today, the Los Angeles Times, and Defense One, among other outlets.
