Checks But Not Balances

An Increasingly Militaristic Donald Trump Gets a Pass From Congress on War Powers

Like Obama before him, Trump can continue using post-9/11 war authorizations to launch military ventures overseas.

The Senate on Wednesday declined to give Congress more authority and oversight over presidential war powers, defeating a measure that would have limited President Donald Trump’s ability to authorize military operations overseas.

By a vote of 61 to 36, the chamber killed an amendment from Sen. Rand Paul (R-KY) that would have scrapped the 2001 and 2002 authorizations for the use of military force, and would have, in turn, pressured Congress to draw up a new one within six months. Those authorizations have served as the primary legal basis for the United States’ foreign military incursions since the September 11 terror attacks.

The measure was expected to fail, and Paul spun it as a victory that 36 senators, most of whom were Democrats, signed on. Many dovish lawmakers—aligned with anti-interventionist conservatives—had attempted similar actions under the Obama administration, only to fall short. What gave proponents hope this time around was that Congress has recently taken decisive steps to reassert its authority with respect to the executive branch on a variety of domestic fronts.

Wednesday’s vote showed that re-shifting of the balance of powers has yet to extend to foreign affairs.

“Unless we could do something literally next week, we would be running into the reality of American military commanders wondering whether or not they should begin to plan for the extraction of our forces and the closing of our facilities,” Sen. Jack Reed (D-R.I.), the top Democrat on the Senate Armed Services Committee, said on the Senate floor.

Paul’s amendment would have repealed those post-9/11 military authorizations within six months of the passage of the National Defense Authorization Act, the annual defense policy bill. It would have also given Congress a window to draw up a new AUMF that encompasses the specific global security threats the U.S. and its allies currently face.

“What we have today is basically unlimited war anywhere, anytime, anyplace upon the globe,” Paul said on the Senate floor. “Even if my colleagues say, ‘war, war, that’s the answer everywhere, all the time,’ by golly, come down and put your name on it.”

Over the last eight months, Congress has shown its willingness to limit Trump’s powers in other key arenas. After the president suggested he could fire special counsel Robert Mueller, senators from both parties quickly drafted legislation that would shield Mueller from Trump’s influence. Additionally, both chambers overwhelmingly approved a new round of sanctions against Russia, dismissing the Trump administration’s objections to key language in the legislation that handicaps the president’s ability to unilaterally lift or ramp up the sanctions.

But a majority of senators argued on Wednesday that a repeal of the post-9/11 AUMFs was a step too far, creating unnecessary uncertainty for Pentagon officials, American soldiers, and U.S. allies overseas.

“Why would we vote to rescind the authority to defeat Al Qaeda and leave our forces in the field questioning whether the elected officials here in Washington have any understanding as to what is occurring in the theaters of active hostilities?” Senate Majority Leader Mitch McConnell (R-KY) said. “All that we do to defeat Al Qaeda and ISIL rests on this AUMF.”

Lawmakers Blame Obama, Too

Attempts to restrict a president’s foreign policy powers are always longshots, since lawmakers tend to be more comfortable deferring to the commander-in-chief on military matters. But efforts to draft new authorizations have grown more serious the longer the post-9/11 AUMFs have remained in place, and as the U.S. military has, under the Trump administration, expanded its presence in countries such as Syria, Afghanistan, Iraq, Somalia, Libya, Yemen.

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In June, the House Appropriations Committee adopted a measure that would have repealed the 2001 AUMF and created a 240-day window for Congress to approve a new authorization. Even Rep. Barbara Lee (D-CA)—the lawmaker who authored it—was stunned that it passed.

But that measure never advanced further, as House Republican leaders stripped the amendment from the final defense appropriations bill before it was put to the floor and eventually approved.

Lawmakers who support undoing the two AUMFs say it has nothing to do with Trump. They note that similar efforts began under George W. Bush and gained steam under Barack Obama, who himself encouraged Congress to draft new authorizations as both a senator and a presidential candidate.

“I don’t know that this vote is a broader proxy for members’ feelings on Trump's foreign policy,”  Sen. Chris Murphy (D-CT) told The Daily Beast. “This has been a problem both in the Obama administration and the Trump administration. The Obama administration was guilty of an unjustifiable expansion of war authorization, as is the Trump administration.”

Sen. Tammy Duckworth (D-IL), an Iraq War veteran who lost both of her legs in combat, questioned Trump’s competence to lead the military. But she noted that she also pushed for similar restrictions when Obama was in office.

“We don’t want to vote yes or no on an AUMF based on who is in the White House. These things need to be clear and the authorities need to be clear. But I think when people look to a commander-in-chief who is not competent in his position, people start to think twice,” Duckworth told The Daily Beast.

New Momentum?

Paul and his allies argue that Congress has demonstrated it won’t act on a new AUMF unless it has a clear-cut deadline to do so. They also believe that repealing the post-9/11 military authorizations is long overdue, and that the nature of the threats against the U.S. has changed in such a way that warrants a new legal basis for the executive branch to wage war.

“This is a different threat than we saw 16 years ago,” Sen. Ben Cardin (D-MD) said. “It’s our responsibility to give congressional authorization for the use of military force.”

If the 2001 and 2002 authorizations were repealed, there is at least one replacement measure Congress could consider. A new AUMF that Sens. Tim Kaine (D-VA) and Jeff Flake (R-AZ) have been pushing for months would authorize military force specifically against ISIS, al Qaeda and the Taliban.

Paul won over Kaine, who announced on Tuesday he would back the Kentucky senator’s amendment as a means to advance his and Flake’s AUMF. Both senators have been pushing the Foreign Relations committee to mark up their proposal, and Kaine said Paul’s amendment would force the committee to act more quickly.

“We’ve got to be the Article 1 branch. We’ve been acting like the article two-and-a-half branch for a very long time under multiple administrations. We’ve got to be the Article 1 branch, and there’s no power that’s more important … than war-making power,” Kaine told reporters.

Despite failing to secure a majority of senators on Wednesday, Paul said he was optimistic that momentum will continue to build toward a more targeted war authorization.

“It hasn’t been easy to get the debate. I’ve been trying to get this vote for five years,” Paul told reporters. “This would be a first step.”