Report

Lawmakers Gear Up to Wrest Back War Powers From the White House

They say the effort seeks to reverse decades of encroachment by the executive branch.

By , a diplomacy and national security reporter at Foreign Policy.
Sens. Bernie Sanders, Mike Lee, and Chris Murphy speak on war powers legislation on Capitol Hill.
Sen. Bernie Sanders, flanked by Sens. Mike Lee (left) and Chris Murphy, speaks after the Senate voted to withdraw U.S. support for Saudi Arabia's war in Yemen at the U.S. Capitol in Washington on Dec. 13, 2018. Mandel Ngan/AFP via Getty Images

A group of lawmakers who have waged a yearslong campaign to rein in presidential war powers are now going on the offensive, unveiling a bill that would drastically reshape Congress’s role in authorizing war, national emergencies, and U.S. arms sales worldwide.

The bill, introduced by Sens. Chris Murphy, a Democrat, Mike Lee, a Republican, and Bernie Sanders, an independent, would significantly curtail the presidential ability to launch military operations abroad without congressional consent and give the legislative branch much greater say over billions of dollars’ worth of arms sales to foreign countries.

A group of lawmakers who have waged a yearslong campaign to rein in presidential war powers are now going on the offensive, unveiling a bill that would drastically reshape Congress’s role in authorizing war, national emergencies, and U.S. arms sales worldwide.

The bill, introduced by Sens. Chris Murphy, a Democrat, Mike Lee, a Republican, and Bernie Sanders, an independent, would significantly curtail the presidential ability to launch military operations abroad without congressional consent and give the legislative branch much greater say over billions of dollars’ worth of arms sales to foreign countries.

The bill seeks to update and replace a Vietnam War-era law, the War Powers Resolution, aimed at checking the president’s ability to wage war abroad without prior congressional approval. It is being introduced as President Joe Biden works to extricate the United States from two decades of costly conflict in Afghanistan and the Middle East, amid a fierce debate in Washington over how the Constitution should be interpreted in an era of complex, low-intensity warfare.

Democratic Rep. Jim McGovern is expected to introduce a companion bill in the House in coming weeks.

The sponsors of the bill argue that the executive branch has over the course of decades consolidated too much power over foreign-policymaking decisions as the legislative branch allowed its own authorities to atrophy. They see the legislation as a sorely needed course-correction. The bill would require the president to terminate military actions after 20 days if not authorized by Congress (the president has a 60-day “termination clock” under current law) and cut off funding for military action if the president does not obtain the necessary green light from Congress.

It also aims to assert Congress’s role in American arms sales abroad, a key aspect of U.S. military and diplomatic policy with allies and partners around the world. Under current law, arms sales to foreign countries are automatically approved unless both the House and Senate pass veto-proof resolutions to block the sales. Under the new act, Congress has to actively approve major foreign military or direct commercial sales for most munitions and military equipment worth above $14 million.

Biden has signaled support for some congressional efforts to check presidents’ war power authorities, but it’s yet unclear if the Biden administration supports this bill, which goes much further than past legislative efforts to halt specific weapons sales or authorizations to use military force on a case-by-case basis. A Democratic Senate aide said they made the Biden administration aware of the legislation but haven’t yet had in-depth conversations with administration officials on the bill.

On the legal front, the bill also updates the War Powers Resolution by defining terms never defined in the original 1973 version—including the term “hostilities”—in an effort to check the executive branch’s ability to legally justify use of military forces without congressional consent. It also sunsets all existing authorizations to use military force and increases lawmakers’ control over “national emergencies” that the president can invoke to legally back up new military strikes and arms sales.

There are currently 39 national emergencies in place, including ones allowing for sanctions or export controls that have been in place since the 1990s, and in one case even the late 1970s. One example of a national emergency still on the books: a 2001-era national emergency declared by President George W. Bush to allow sanctions on Albanian insurgents operating in North Macedonia.

Murphy in a statement said that, “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.”

“Presidents of both parties have usurped Congress’s prerogative to determine if, when, and how we go to war,” Lee said in a statement. “In areas where the Constitution grants broad powers to Congress, Congress is ignored. The National Security Powers Act will change that and return these checks and balances to our government.”

Not all Republican lawmakers are on board, however. Some have expressed misgivings about efforts to roll back 9/11-era authorizations for the president to use military force, arguing it hinders a president’s ability to respond to attacks on the U.S. military from nonstate actors like Iranian proxy militias and terrorist groups in the Middle East.

“We’ll have a mixed debate within the party on some of these issues,” said one Senate Republican aide, speaking on condition of anonymity. “I expect that this will garner a lot of debate, and I hope that we can see some of the same curiosity and support among some of the colleagues on our side of the aisle.”

Past efforts to curtail the president’s authorization to use military force abroad, including votes to halt the U.S. military’s involvement in the conflict in Yemen, have passed with only a minority of Senate Republican support—and under former President Donald Trump, those bills hit a wall at the president’s desk with a veto.

Trump and his Secretary of State Mike Pompeo also fought fierce political battles with Capitol Hill over weapons sales to Saudi Arabia and the United Arab Emirates. Both countries are heavily involved in the war in Yemen against Iran-backed Houthi rebels—a conflict marked by indiscriminate bombings of civilian targets that have helped fueled a massive humanitarian crisis.

Pompeo in 2019 approved billions of dollars’ worth of arms sales to Saudi Arabia and the UAE, invoking national security emergency authorities citing unspecified threats from Iran to override congressional opposition. The move infuriated some lawmakers, who demanded an investigation from the State Department’s internal watchdog. The watchdog concluded Pompeo used proper procedures to expedite the arms sales but said he failed to take into account the humanitarian toll the weapons sales would have on the war in Yemen. The watchdog’s investigation had a narrow scope and did not assess the merits of Pompeo’s emergency authority.

After the Trump era, lawmakers believe they have more support on their war powers campaign from Biden, though some voiced misgivings about Biden’s decision to launch strikes against Iranian proxy militias last month without congressional consent.

They also dismiss criticism that Congress is trying to take too much foreign-policy power away from the executive branch. “We’re not trying to wrestle too much away from the executive branch, because frankly some of these powers were never meant to be the executive’s in the first place,” the Republican Senate aide said. “If anything, this is a retaking, not a wresting away of [war] powers.”

Correction, June 20, 2021: This article has been corrected to clarify that there are 39 national emergencies currently in place. A previous version of this article misstated this figure.

Robbie Gramer is a diplomacy and national security reporter at Foreign Policy. Twitter: @RobbieGramer

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