Article I, Section 8, Clause 11 of the United States Constitution, sometimes referred to as the War Powers Clause, vests in the Congress the power to declare war, in the following wording:
“[The Congress shall have Power…] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;”
Here we seem to have just one more instance of clear language of the constitution being noteworthy in the absence of practice. In truth, the congress has yielded this constitutional power to an imperial executive.
The congress issued a declaration of war on Japan on December 8, 1941. But since then, Congress has rarely used its constitutional power to formally issue a war declaration.
Congress approved a resolution declaring war with Japan on that fateful day, as the Senate unanimously voted for the resolution, 82-0. The House passed the resolution by a 388 to 1 vote, with Jeannette Rankin, a pacifist, opposing the move.
“Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all the resources of the country are hereby pledged by the Congress of the United States,” the resolution read.
Since then, the United States has only issued five other war declarations: against Germany and Italy (on December 11, 1941) and against Bulgaria, Hungary and Romania (on June 4, 1942).
And in total, war declarations were declared by Congress in the War of 1812, the Mexican-American War, the Spanish-American War, World War I and World War II.
The United States military involvement in Korea came as part of a United Nations effort, while the escalation of the Vietnam War followed a joint resolution passed by Congress as requested by President Lyndon B. Johnson in 1964.
Since Vietnam, United States military actions have taken place as part of United Nations’ actions, in the context of joint congressional resolutions, or within the confines of the War Powers Resolution (also known as the War Powers Act) that was passed in 1973, over the objections (and veto) of President Richard Nixon.
For example, when President Obama approved the use of military force in Libya in 2011, it was the 132nd time that a President acted under the conditions of the War Powers Resolution since 1973.
The Authorization to Use Military Force (AUMF) passed by Congress on Sept. 14, 2001, authorizes 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 Sept. 11, 2001, or harbored such organizations or persons”— in other words, al Qaeda and the Taliban regime in Afghanistan.
On Oct. 11, 2002, Congress passed a second AUMF giving the president authority to “to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.”
Currently, however, the U.S. has military personnel deployed and equipped for combat in at least 19 countries: Afghanistan, Iraq, Syria, Yemen, Somalia, Libya, Kenya, Niger, Cameroon, Uganda, South Sudan, Democratic Republic of Congo, Central African Republic, Djibouti, Jordan, Turkey, Egypt, Cuba, and Kosovo.
In October, three U.S. soldiers were killed in an apparent ambush in Niger. And the U.S. military has recently stepped up operations in both Yemen and Somalia.
On April 20, 2018 Sen. Rand Paul sent a letter to his colleagues entitled : The New AUMF Codifies ‘Forever War’
April 18, 2018
Dear Colleague:
For some time now, Congress has abdicated its authority to declare war. The status quo is that we are at war anywhere and anytime the President says so.
So, Congress’s new solution is not to reassert Congressional prerogative but to codify the status quo.
It is clear upon reading that the Kaine/Corker AUMF gives nearly unlimited power to this or any President to be at war anywhere, anytime and against anyone, with minimal justification and no prior specific authority.
This is not an AUMF, it is a complete rewriting of power of the executive and constitutional separation of powers.
The new Kaine/Corker AUMF declares war on:
1. The Taliban
2. Al-Qaeda in the Arab Peninsula
3. ISIS anywhere
4. Al-Shabaab in Somalia and elsewhere
5. Al-Qaeda in Syria
6. Al-Nusra in Syria
7. The Haqqani Network in Pakistan and Afghanistan
8. Al-Qaeda in the Islamic Maghreb in Niger, Mali, Algeria, Libya, and Nigeria
9. AND ASSOCIATED FORCES (as defined by the President) throughout the globe.
Previous AUMF have never codified associated forces. The Kaine/Corker AUMF not only codifies associated forces, but by conservative estimates declares war on over 20 nations with forces “associated” with either Al-Qaeda or ISIS.
Should Congress declare war or not declare war? Absolutely. Should we be having this debate? Absolutely.
It is indisputably clear that the authority exercised under the Authorization for the Use of Military Force of 2001 (P.L. 107-40) has become too broad and requires updating, but this Kaine/Corker AUMF is simply not the answer. Simply put, the Kaine/Corker AUMF provides an even more expansive war-making authority to the Executive Branch than the status quo.
The founders recognized that the Executive Branch is most prone to war, thus they placed the power to declare war with the legislature “with studied care.” Yet the Kaine/Corker AUMF would completely abdicate Congress’ power to declare war under Article I of the Constitution.
To be clear, handing war-making power to the Executive Branch is not an exercise of Congress’ power, it is the abandonment of that power.
Arguably, the Kaine/Corker AUMF delegates the Constitutionally explicit power of war declaration to the Executive branch and is therefore unconstitutional.
Expansion of authority as it pertains to groups:
The Kaine/Corker AUMF grants new, unchecked powers to the President in determining what groups qualify for the use of force. This includes the language in Section 3 and Section 5 expanding authority to “associated forces,” which would be the first time that this ambiguous phrase has been codified into law under an AUMF.
Expansion of authority as it pertains to States:
Perhaps more troubling is the level of authority granted to the Executive as it applies to authorizing military action against other nations. The Kaine/Corker AUMF conveys authorization for the use of force in Afghanistan, Iraq, Syria, Somalia, Yemen and Libya, though the bill’s passive inclusion of these countries as outside the definition of a “new foreign country” leaves room for more mission creep in each country. While the 2001 AUMF grants authority to fight those behind the 9/11 attacks wherever they may be, and the 2002 AUMF grants authorization against Saddam Hussein in Iraq, Congress should debate military action in Iraq, Afghanistan, and the remaining four countries on an individual basis.
Limitless potential for war by the Executive:
If the Kaine/Corker AUMF is passed, then Congress will have chosen to make itself irrelevant. This legislation grants the executive the power to use military force against any group or country it chooses, so long as they report it to Congress within 48 hours.
While this shares similarities with the War Powers Resolution, use of force in that instance is constrained by a national emergency, or Congressional authorization. This broad bill would allow the Executive unlimited latitude in determining war and leave Congress debating such an action after forces have been committed into action.
Importantly, even if Congress were to pass a Joint Resolution to reverse an expansion of war-making authority by the President, the President could then veto that resolution. All war making power will henceforth emanate from the President and require no affirmative action of Congress.
It also goes without saying that once our forces are committed it is exceedingly difficult to remove them. This is why the Constitution is clear that authorization for such action comes from Congress before any war begins. Under the Kaine/Corker AUMF, though, congressional oversight is limited to a reactive posture, as the President is allowed to declare any additional groups “associated,” meaning military force would then be authorized, so long as he notifies Congress within 48 hours of doing so. Congress would then have to remove said group via joint resolution.
No sunset provision and quadrennial review:
Instead of a sunset provision which would allow war powers to expire without Presidential approval, this Kaine/Corker AUMF can only be nullified with Presidential approval or a veto proof vote.
If this bill becomes law, the authority for the executive branch to make war as it chooses will continue indefinitely, barring a complete repeal at a later date.
The Kaine/Corker AUMF essentially codifies “forever war,” as the Executive Branch would be able to unilaterally attack any nation or group it saw fit. Once again, this is the inverse of how the process is laid out in the Constitution. The only recourse Congress would have in these instances is to pass a joint resolution within the first 60 days of a conflict-a resolution subject to a veto by the President. If not then, Congress would have a chance to review the larger authorities once every four years, at which time the President could also propose revisions to his own AUMF.
In closing, the Kaine/Corker AUMF flips responsibility for declaring war from Congress to the President. Congress is constitutionally responsible for authorizing war and should not be relegated to a review panel that conducts after-the-fact examinations of the wars of the Executive Branch.
Sincerely,
Rand Paul, MD
United States Senator
It also seems unlikely that an official state of war could be declared in the near future, due to the legal differences between a “state of war” and an “authorization to use military force.”
As the Congessional research Svc- AUMF history RL31133 explains, a formal war declaration triggers a large number of domestic statutes, like the ones that took place during World War II.
“A declaration of war automatically brings into effect a number of statutes that confer special powers on the President and the Executive Branch, especially about measures that have domestic effect,” it says.
These include granting the President the direct power take over businesses and transportation systems as part of the war effort; the ability to detain foreign nationals; the power to conduct spying without any warrants domestically; and the power to use natural resources on public lands.
“An authorization for the use of force does not automatically trigger any of these standby statutory authorities. Some of them can come into effect if a state of war in fact comes into being after an authorization for the use of force is enacted; and the great majority of them, including many of the most sweeping ones, can be activated if the President chooses to issue a proclamation of a national emergency,” says the Congressional Research Service.
“But an authorization for the use of force, in itself and in contrast to a declaration of war, does not trigger any of these standby authorities.”
What politicians apparently are concerned about is giving the president a blank check for war and spineless submission to the special interest lobbies. And, or course, more spending.
So, yes, let’s keep spending that $32,000,000 an HOUR for the total cost of our wars since 2011.
That giant sucking sound you hear is America’s great promise going down the drain. The swamp critters we voted in finally managed to “git ‘er dunnnn.”
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