By: Karoun Demirjian; The Washington Post
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.
But despite the measure’s bipartisan backing, it is likely to face stiff head winds from lawmakers who defend presidential authority to make decisions affecting national security without constantly seeking permission from Congress, and from the administration itself. On Tuesday, one of its authors even acknowledged that the bill is unlikely to pass in its current form, while expressing hope it will “stimulate a conversation within Congress” about asserting its national security powers.
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.
The legislation also draws inspiration from recent disputes between lawmakers and the past two administrations, in seeking to impose firm standards forcing presidents to consult Congress early and often when it comes to using and funding weapons of war.
The trio behind the measure, Sens. Chris Murphy (D-Conn.), Mike Lee (R-Utah) and Bernie Sanders (I-Vt.), are longtime proponents of giving Congress a more proactive role in such matters. In recent years, they joined forces to invoke Congress’s war powers and bring an end to U.S. participation in Yemen’s civil war — an effort that secured majority support, but not enough to overcome President Donald Trump’s veto.
“Over time, Congress has acquiesced to the growing, often unchecked power of the executive to determine the outline of America’s footprint in the world,” Murphy said in a statement. “Before it’s too late, Congress needs to reclaim its rightful role as coequal branch on matters of war and national security.”
The measure seeks to replace the War Powers Act of 1973 with stiffer and better-defined directives to the current and future administrations about when to approach Congress for permission to conduct military operations.
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.
Lawmakers have argued that such prescriptions are necessary to force presidents to recognize Congress’s power to declare war, given to the legislative branch under Article I of the Constitution. But successive presidential administrations have argued that the War Powers Act is unconstitutional for restricting the president’s authority as commander in chief, as defined under Article II of the Constitution.
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 measure would require presidents to secure such congressional approval for most major foreign military or direct commercial sales of military-grade weaponry — which, in most cases, means sales valued at $14 million or more.
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.
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.
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 say 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. The 2002 AUMF has not been used as the sole justification for a U.S. military operation in a decade.