On a regular basis, members of Congress grumble about the Executive Branch usurping the war powers granted to Congress by the U.S. Constitution. Nevertheless, air strikes and other incursions continue unabated. Last month, President Joe Biden ordered “defensive precision air strikes” in Iraq and Syria, reportedly in response to drone attacks on U.S. personnel stationed in Iraq.
This month, Congress’ grumbling resulted in Senate Bill 2391, the National Security Powers Act, introduced on 07/20/21 by Senators Chris Murphy (D-Connecticut), Mike Lee (R-Utah) and Bernie Sanders (I-Vermont).
SB 2391 aims to do the following:
- Increase Congress’ control over the authorization of military actions.
- Reform the review of weapons sales to foreign countries.
- Increase Congress’ control over the declaration of national emergencies.
The Bill aims to accomplish its objectives principally by the following:
- Repeal of the War Powers Resolution of 1973.
- Sunset four existing authorizations for the use of military force. One of which is the open-ended authorization President Dwight Eisenhower obtained from Congress in 1957 purportedly to protect Middle Eastern nations from Communist aggression. The remaining three authorizations are those Congress granted following the 9/11 attack on the U.S.
- Set forth the minutia of what words in the Bill mean, when a U.S. President can send troops into military action without Congress’ authorization, and when authorizations are supposed to end.
- Require Congressional authorization for foreign arms sales over certain amounts.
- Require a President submit underlying laws and protocols supporting declarations of emergency, and limit the duration of states of emergency.
In spite of rhetoric about usurpation of war powers, all this bill aims to accomplish is a reform of how Congress can continue to dodge its Constitutional responsibility to speedily and efficiently deliberate on matters of war, and choose to declare or not declare war when military hostilities arise.
If Congress were really serious about curbing Presidential usurpation of power in matters of military action, all that Congress needs to do is repeal all war-related statutory authorizations now on the books and abide solely by what the U.S. Constitution states in Article I, Section 8, Clause 11; and Article II, Section 2,
Article I – Congress shall have the power,
- To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
- To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
- To make Rules for the Government and Regulation of the land and naval Forces.
Article II –
- The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.
Articles I and II make clear that Congress needs to declare war before a President exercises his duties as Commander in Chief. Constitutionally, in matters of war a President’s duties are solely military, directing deployments of troops placed at his command by Congress.
This Bill requires Congressional approval of government foreign arms sales over certain amounts. This requirement implies Congress’ view that choosing arms buyers is akin to choosing friends and foes. Besides, the U.S. Constitution gives Congress sole power in Article I, Section 8, Clause 3 to “Regulate commerce with foreign nations.”
The last time Congress exercised its Constitutional responsibility under Article I, Section 8, Clause 11 was December 1941. For the last 80 years, men and women in the military have been sent into battle without public debate or a formal declaration of war. Although Senate Bill 2391 falls short in requiring that Congress exercise its Constitutional duty regarding the declaration of war, it does call for some restraints that could prevent the Executive Branch from engaging the nation in forever wars.
Pictured: Korean War – Nearly 40,000 U.S. soldiers died in action and more than 100,000 were wounded in a war that was never declared by the U.S. Congress.