Tuesday Column: Congress and the War Powers Act

A poorly designed law deserves to die a natural death.

Congress has the power of the purse.

When it comes to dictating the President’s conduct of foreign policy and his actions as Commander-in-Chief, that is pretty much all of the power it needs.

The War Powers Act should be repealed. It confuses things unnecessarily about who's got power over what.

Like most things that happened in the early 1970’s, the War Powers Act was reaction to a host of bad decisions made well before Richard Nixon ever became President. Nixon vetoed the legislation but because of unpopularity of the Vietnam War, it passed both houses of Congress by a 2/3rd vote.

The War Powers Resolution requires the president to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without congressional authorization for use of military force (AUMF) or a declaration of war by the United States.

Ever since the War Powers act became law, it has been largely ignored by whoever occupied the White House. George H.W Bush announced we were invading Iraq, and it was only after Bob Michel begged him to push for a Congressional authorization (which mostly united the Republicans and totally split the Democrats), that he agreed to even acknowledge its existence.

Bill Clinton totally ignored the Congress when he started to bomb the Serbians in Kosovo. The House took a vote to authorize the action, but the resolution died in a tie vote. And Clinton totally ignored the War Powers Act restrictions on the timing of his bombing campaign.

Congress gave George W. Bush such latitude to take on the world with the War on Terror resolution that pretty much any action taken by any President since that day on September 11 has been blindly authorized. Here is how Wikipedia describes what is now known as the Authorization for the Use of Military Force (or AUMF): “Business Insider has reported that the AUMF has been used to allow military deployment in Afghanistan, the Philippines, Georgia, Yemen, Djibouti, Kenya, Ethiopia, Eritrea, Iraq, and Somalia.^[10] The 2001 AUMF has enabled the US president to unilaterally launch military operations across the world without any congressional oversight or transparency for more than two decades. Between 2018 and 2020 alone, US forces initiated what it labelled "counter-terror" activities in 85 countries. Of these, the 2001 AUMF has been used to launch classified military campaigns in at least 22 countries.”

President Obama completely ignored the Congress when he launched his campaign against Libya. In fact, Hillary Clinton testified before Congress that the War Powers Act didn’t apply to what we were doing there because there was no hostile power that we were at war with (the kind of lie that has served Hillary Clinton well over the years). When Obama launched campaign against Bashar Al Assad, he didn’t bother to get an authorization from Congress. The campaign led to a bloody civil war in the region, the rise of the ISIS and the loss of millions of lives.

Joe Biden didn't bother to pass a Congressional authorization for our armed support of the Ukrainians against Russia. All he asked for was money. And at the end of the day, that’s all her ever really needed.

The War Powers Act has always been constitutionally dubious and it because Congress has so often defanged itself by its endless partisanship, it is stupid to rely on such law that has been endlessly misinterpreted and roundly ignored by whatever President occupies the White House, from either party.

Here is what Presidents really respect: The power of the purse.

Congress should be very specific about it appropriates to the Executive Branch. If the President does not follow the letter of the law on the power of the purse, well, then, the Congress has real power to enforce that law.

Sadly, because the Congress is so partisan and so incapable of finding common ground on issues of common concern, it rarely acts to protects its own interests when it comes to bigger issues like defense policy and war making. The Congress can’t even come up with a defense spending bill every year. They have to rely on continuing appropriations (or a CR) to govern.

The fact that every President has been able to use the AUMF from two decades ago to justify every military incursion is an indictment against the Congress.

They hide behind the War Powers Act as a way to deflect the blame. But it never goes further than that. Just a few complaints.

And here is the reality. If Congress didn’t support the President on what he does to bomb our enemies into submission, they could always pull the plug on funding. But they support the President. If the Congress supports the President, there is no reason to pass a new resolution. If they don’t, they can always pull the funding.

The War Powers Act is a huge distraction. It has no teeth and has been roundly ignored by most Presidents since it was first enacted. It should be repealed once and for all.