If there’s one theme that unites the sprawling field of 2020 Democratic candidates, it’s this: Congress has abdicated its responsibility to declare war, allowing successive administrations to make ever-more-expansive claims of presidential authority to fire missiles, drop bombs, and send American soldiers into harm’s way.
Democratic hopefuls want to claw some of that power back for Congress, calling for a new authorization for the use of military force, or AUMF, to replace legislation from 2001 and 2002 that is still being used to prosecute the United States’ constantly metastasizing war on terror.
All seven of sitting U.S. senators vying for the Democratic nomination voted in favor of a failed 2017 effort by Sen. Rand Paul, R-Ky., to repeal the 2001 AUMF. South Bend Mayor Pete Buttigieg proposed in Tuesday’s Democratic debate that any new AUMF must be renewed every three years.
“I will propose that any authorization for the use of military force have a three-year sunset and have to be renewed, because if men and women in the military have the courage to go serve, members of Congress ought to have to summon the courage to vote on whether they ought to be there,” Buttigieg said.
There’s just one problem: It’s not really up to the president.
Congress has tried and failed multiple times since Sept. 11 to update the 2001 AUMF, which authorizes military action against al Qaeda and “associated forces” that helped carry out or harbor the plotters of the attacks. Both the Obama and Trump administrations have argued that ISIS qualifies as an “associated force,” even though the group formally splintered off in 2014. The courts have yet to weigh in on the distinction and the Trump administration has faced at least one legal case that threatened to undercut the rationale for the majority of its counterterrorism missions across the globe.
Past presidential candidates have run on a platform of empowering Congress, only to have flexed the executive’s institutional muscles after taking office.
“The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all,” then-candidate Barack Obama said in 2008. “And that’s what I intend to reverse when I’m president of the United States of America.”
Yet in 2014, the Obama White House announced its theory that it did not need Congress’s approval to fight the Islamic State in Syria — a group no longer aligned with al Qaeda — in part because of “the administration’s perception that Congress was unable to function as a competent governing partner,” according to Charlie Savage’s 2017 book Power Wars.
“I think there’s a sense that Congress has been too slow to address a large number of domestic issues about which there’s broad public consensus,” said Mieke Eoyang, a national security analyst with the Democratic think tank Third Way. “At the same time there’s a sense that the President can take the nation to war without building that broad consensus before risking the lives of Americans.”
Eoyang cited recent tensions between the United States and Iran, which have led critics to argue that hawkish members of the Trump administration are seeking to provoke a war.
“In a democracy, both are problematic because it shows the government isn’t responding to the will of the people,” she continued.
Although most of the Democratic candidates have called for Congress to reassert itself, some frontrunners have also expressed a robust conception of the president’s inherent Article II authorities. Sen. Elizabeth Warren, D-Mass., told Vox in a June interview that on Day 1 of her presidency, “I’ll do the things that I can do as president on my own,” like ban offshore drilling. “Look at the tools in the toolbox. Right? What are all the tools? What are the ones that a president can do — I love this word — by herself? And what are the ones you got to get Congress for?”
“I don’t think it’s formally inconsistent to be proposing reforms through [executive order] and think Congress should take more of a role in the war powers,” said Steve Vladeck, a national security lawyer at the University of Texas. “I think it bespeaks the larger problem, which is that Congress has left so much to be filled in by the executive branch.”
Some lawmakers on Capitol Hill—including Democrats and staunch noninterventionists like Paul—have sought to preemptively constrain President Trump from a military conflict with Iran. It’s not an unprecedented idea: Congress also considered using such a move to try to constrain President George H.W. Bush from using force against Iraq.
“On the Hill at that point they were actually talking about passing a resolution that said…that he could not use force unless he got their approval,” then-deputy attorney general Bill Barr recalled in a 2001 oral history at the University of Virginia. “There were some in the administration who were saying, Just let them do it, screw them, ignore them, and let them pass whatever they want.” (Barr advised engaging with Congress to “see if we can head off that kind of resolution and, in fact, get a resolution in support of it.”)
But Barr, now Trump’s attorney general, holds a particularly expansive view of the president’s inherent war-making authorities under Article II. In the same oral history, he argues that the commander-in-chief has the ability to override at least a nonbinding Congressional resolution. Some legal analysts have read his remarks as even broader, suggesting he may believe that the president has the authority to act even in the face of a statute forbidding it.
“There’s no doubt that you have the authority to put 500,000 troops in the field,” Barr says he advised Bush at the time. “We have intelligence that they have weapons of mass destruction—chemical weapons, biological weapons—and your job as commander-in-chief is to make sure those troops are not preemptively attacked.
“If you feel as commander-in-chief that in order to protect your army in the field you have to launch first, you absolutely can do that,” he said. “Which I thought was an ingenious argument.”
At least during the Trump administration, most of the more high-profile efforts by Congress to rope in the executive branch’s use of military force have ultimately failed, and there is a widespread sense on Capitol Hill that Congress simply lacks the political will to claw back lost authority.
“There’s always this critical distinction between whether POTUS has the power to act without Congress—and whether all things being equal, we’d be better off if Congress occupied the field,” Vladeck said.