This week, Congress came one step closer to actually ending an American war, for once.
On Wednesday, by a vote of 66–30, the Senate passed S. 316, the bill to repeal the two authorizations for the use of military force (AUMFs) against Iraq currently in effect. The first AUMF, passed in 1991, authorized the deployment of troops after Iraq invaded Kuwait, while the second, passed in 2002, allowed the president to use military force “as he determines to be necessary and appropriate” to “defend the national security of the United States against the continuing threat posed by Iraq.” The resulting war would destabilize the region, killing thousands of troops and hundreds of thousands of Iraqi civilians.
The repeal bill, barely a page in length, would not have any immediate effect: Neither AUMF currently forms the sole basis for an American overseas conflict. The Congressional Budget Office determined that “enacting S. 316 would not affect the federal budget.” Nonetheless, it’s a good sign that Congress is willing to reclaim its constitutional powers, even incrementally. And it shouldn’t stop there.
Under the Constitution, while the president is the commander in chief, Congress has the sole authority to declare war. But it has not done so since World War II. Instead, over time Congress increasingly ceded war-making powers to the president. Imbuing the president with the power to both make and manage a war deprives a coequal branch of government of oversight opportunities and undermines the system of checks and balances.
In 1973, Congress passed the War Powers Resolution, nominally intended to limit the president’s powers when deploying troops overseas regardless of a formal declaration of war. But in practice, presidents easily circumvented the statute’s meager constraints. Similarly, AUMFs give the president the statutory authority to deploy troops at his own discretion rather than Congress’.
AUMFs are also often cited to justify participation in completely unrelated conflicts. The Obama and Trump administrations each cited the 2002 AUMF in part to justify actions against the Islamic State. The Trump administration further cited it as a pretext for the assassination of Iranian General Qassem Soleimani.
But while the revocation of the 1991 and 2002 AUMFs is a welcome shift, Congress should go one step further and repeal the 2001 AUMF as well.
One week after September 11, Congress passed an AUMF authorizing the president
to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Even by AUMF standards, it was remarkably open-ended: Any president, while in office, could deploy the military anywhere and against anyone based upon his own determination of culpability in the 9/11 attacks. He could further do whatever he deemed necessary to prevent future attacks, regardless of any potential constraining factors.
In contrast to the 1991 and 2002 authorizations, the 2001 AUMF has been cited repeatedly in the last two decades to authorize conflicts in at least 19 countries, even though it was nominally intended to apply to Al Qaeda and the Taliban. If Congress is serious about reining in the president’s war powers, it should repeal this AUMF too.
Thankfully, there seems to be a bipartisan consensus on the subject, at least on this particular proposal. S. 316 was sponsored by multiple senators from both sides of the aisle, including Sens. Todd Young (R–Ind.), Chuck Grassley (R–Iowa), Tim Kaine (D–Va.), and Bernie Sanders (I–Vt.). It passed the Senate by a comfortable margin, and House Speaker Kevin McCarthy (R–Calif.) indicated his support for the bill and that he would bring it to a vote in the House.
Earlier this month, the White House affirmed President Joe Biden’s support for the repeal, but added, “The Administration notes that the United States conducts no ongoing military activities that rely primarily on the 2002 AUMF, and no ongoing military activities that rely on the 1991 AUMF, as a domestic legal basis.” The statement made no mention of the 2001 AUMF.
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