Shame on Congress

It has ceded the people’s warmaking powers

On Thursday, The Washington Post reported that Virginia Sen. Tim Kaine, a Democrat, and Tennessee Sen. Bob Corker, a Republican, are close to reaching a deal to updating the Authorization of Military Force (AUMF). Passed in September 2001 in response to the attacks of 9/11, the AUMF has been the legislative cover that presidents have used to wage what amounts to an endless war — sometimes on terrorist groups like ISIS, sometimes on rogue states like Libya.

It is well past time for Congress to revise the AUMF. It is a disgrace to our Constitution that the president has had license to wage war as he sees fit without a more explicit mandate from Congress.

In fact, nothing demonstrates Congress’ dysfunction more clearly than its total abdication of its warmaking powers. The Constitution grants Congress the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Importantly, the president does not have such authority. Rather, according to the Constitution, “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.”

And just as presidents do not have the authority to begin conflicts, they do not possess sole authority to bring conflicts to a close. Rather, they shares that power with the Senate: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

The Founders set up these warmaking powers very purposefully. The history of Western civilization up to that point included endless tales of kings launching wars for their own ambitions, funded by burdensome internal taxes and, of course, fought on the front lines by average men. In the constitutional schema, Congress is supposed to be the branch of government that most directly represents the people, which is why it has sole authority to declare war. There would be no more wars waged for the vanity of rulers against the interests of the people.

Yet over the past 80 or so years, Congress has slowly but surely handed off its power to the other branches — the courts and especially the president. This has been the case on both domestic and foreign policy fronts. The last time Congress actually made a formal declaration of war — the norm through most of our history — was World War II.

And the past 17 years have been ones of never-ending warmaking by our government. The United States has been involved in conflicts in Iraq, Afghanistan, Libya, Yemen and Syria. Yet the legal justification for these many incursions has been the 2001 Authorization of Military Force, despite the fact that its manifest intention was to deal with al-Qaida and Osama Bin Laden, who of course has been dead for the better part of a decade.

The fate of any revised AUMF remains uncertain. After all, Congress pretty much cannot get anything done these days. Moreover, the talks between Mr. Corker and Mr. Kaine on updating the AUMF are narrowly tailored, dealing only with terrorist groups rather than rogue states. Still, this is a step in the right direction.

A revised AUMF should be a priority for constitutional conservatives, and indeed for all citizens who consider themselves faithful to the original vision of government set forth by the Founders. To put matters bluntly: 17 years and counting of legislatively unfettered war is a constitutional disgrace.

It is politically easy for Congress to hand off power to the president and just let him handle the difficult questions, but doing so diminishes the involvement of the people in essential matters of war and peace. This government, after all, is supposed to be a republic — as Abraham Lincoln put it, “of the people, by the people, and for the people.” It is past time that the representatives of the people begin to act as such and take back the warmaking powers they have given away.

Jay Cost, a contributing opinion writer to the Post-Gazette and a contributing editor to The Weekly Standard, lives in Butler County (JCost241@gmail.com, Twitter @JayCostTWS).