Authorized Use of Military Force Bills Stand Little Chance of Becoming Law
By Dr. Stephen Schwalbe
Faculty Member, Public Administration, American Military University
Critics claim that U.S. military actions overseas not specifically sanctioned by Congress violate the 2001 and 2002 Authorization for the Use of Military Force (AUMF) law. The Senate Foreign Relations Committee is now considering two competing bills to update these AUMFs.
The first bill, submitted in April, is co-sponsored by Senate Foreign Relations Committee Chairman Senator Bob Corker (R-TN) and Ranking Member Tim Kaine (D-VA). If passed, the bill would authorize the use of force against “associated forces” that include:
- Al-Qaeda in the Arabian Peninsula (AQAP)
- Al-Qaeda in the Islamic Maghreb (AQIM)
- Al-Qaeda in Syria
- The Haqqani network based in Pakistan
The bill also would permit U.S. military operations in Somalia, Yemen and Libya.
Two Bills Call for Congress to Authorize Military Action against Terrorist Organizations
The Corker-Kaine bill also requires the president to submit a new war plan every four years. Several committee members from both political parties have lined up behind the bill, including Senators Christopher Coons (D-DE), Jeff Flake (R-AZ) and Todd Young (R-IN).
The second bill, sponsored by Senator Jeff Merkley (D-OR), will probably be submitted sometime this month. It calls for authorizing military action only against al-Qaeda, the Taliban and the Islamic State in Afghanistan, Iraq and Syria. None of these organizations is named in the Corker-Kaine proposal.
Merkley’s bill also includes a five-year time limit, or a “sunset provision,” on when the war authorization would expire.
Finally, the president would be required to alert Congress within 48 hours of introducing ground troops abroad. The troops could remain in place only if lawmakers approve. Beginning in 2022, the president would need to report to Congress every four years on any use of military force overseas.
It seems that the Senate Foreign Relations Committee probably will not be able to agree on either of these proposals, in addition to other unresolved issues. For example, some committee members want the bills to permit military expansion into other countries or against other terrorist groups as needed.
Bills Are an Attempt to Change War Powers Resolution of 1973
These current efforts by the Senate Foreign Relations Committee are also an end run to change the War Powers Resolution of 1973. The Resolution was enacted to limit a president’s power to use military force overseas without properly notifying and gaining approval from Congress. This law was the result of President Nixon secretly authorizing the 1965 bombing of the Ho Chi Minh Trail in Laos and Cambodia during the Vietnam War.
While President Trump might favor an updated AMUF, he is unlikely to favor any limitations of his powers as Commander-in-Chief by having to notify Congress and by the time constraints placed on military actions.
Trump may well veto either of these proposed bills, a step that Senator Corker anticipates. “If you took up a bill to stop [the president from engaging in military action], the president would veto it and it would take a supermajority to override it,” Corker said. In fact, it took a supermajority in both chambers of Congress to override Nixon’s veto of the original War Powers Resolution.
In fact, there is no enforcement mechanism in the Resolution to compel a president to abide by it. As a result, the law has no real power. Presidents ignore it or use it when politically or militarily expedient.
A New War Powers Act Would Likely Be a Law without Enforcement Power
Passing new war power legislation without an enforcement mechanism would likely result in the same situation – a law without any way to enforce it. Hence, Congress is not likely to impeach and convict a president for violating it.
Congress also has never taken a president to court after clearly violating the War Powers Resolution, including President Ronald Reagan, who routinely ignored the 1973 War Powers Resolution. In 1983, when Reagan authorized the invasion of Grenada to oust the Cuba-supported government there, he never sought permission from Congress.
Congress has also been unsuccessful in taking a president to court after clearly violating the Resolution. That situation is unlikely to change.
While the AUMFs will need to be updated at some point, the future of the War Powers Resolution of 1973 seems fairly secure. It is unlikely the Senate Foreign Relations Committee will be able to agree on a replacement bill for the AUMF/War Powers Resolution. If a viable replacement bill were somehow created, it remains unlikely that the bill would survive a filibuster in the Senate. The bill would require a supermajority vote to overcome it.
But if by some miracle Congress passed the bill, what would be President Trump’s motivation to sign it? If Trump were to veto the bill, as Republican Senator Corker expects, it would take a supermajority vote in both chambers of Congress to override the veto. Given that Congress is controlled by Republicans and President Trump is a Republican, the odds of a veto override are as unlikely as winning the Powerball lottery.
About the Author
Dr. Stephen Schwalbe is an associate professor at American Military University. He is also an adjunct professor at Columbia College and Embry-Riddle Aeronautical University. Stephen received a Ph.D. in Public Administration and Public Policy from Auburn University in 2006.
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