Bipartisan Alliance Takes Aim at Presidential War Powers

July 21, 2021 Updated: July 21, 2021

A trio of U.S. senators has introduced legislation designed to curb presidential national security powers, reflecting a growing bipartisan movement to rein in an executive branch that has had carte blanche to wage war for decades.

Sens. Chris Murphy (D-Conn.), Mike Lee (R-Utah), and Bernie Sanders (I-Vt.) announced the National Security Powers Act on July 20, saying that the bill is necessary to realign presidential war-making authority with the Constitution.

“Presidents of both parties have usurped Congress’s prerogative to determine if, when, and how we go to war. Now America’s global standing, treasure, and brave service members are being lost in conflicts the people’s legislators never debated,” Lee said at a press conference unveiling the bill. “In areas where the Constitution grants broad powers to Congress, Congress is ignored.”

Lee was referring to the fact that Congress hasn’t formally declared war under Article I of the Constitution since World War II. Conflicts since the Korean War have been carried out through congressional authorizations.

Murphy said this unconstitutional state of affairs has allowed the executive branch to run amok. He cited the fact that the 2001 Authorization for Use of Military Force (AUMF)—passed in response to the 9/11 terror attacks—has been used to justify military operations in seven countries, including places as distant and remote as Somalia.

“Today we have combat troops in over a half dozen countries in the world with no debate from Congress,” Murphy said.

Under current law, Congress must vote to terminate unauthorized presidential military actions. The National Security Powers Act would reverse that policy, making it so that funding automatically cuts off unless the president secures authorization from Congress within 20 days of starting hostilities. Further, congressional authorizations would have to include clearly defined missions and operational objectives.

The National Security Powers Act would also pare back executive powers when it comes to arms deals, requiring Congress to affirmatively authorize most foreign military sales and direct commercial arms sales of more than $14 million. Finally, the bill would restrict the executive branch’s ability to tap into “emergency powers” that are available when a president declares a national emergency.

“There are currently 39 so-called ‘emergencies’ on the books, some dating back to the 1970s,” according to a statement relating to the bill. “This legislation requires renewal of emergencies after one year to be approved by Congress, and imposes a five-year total limit on states of emergency.”

At the July 20 press conference, reporters asked Lee why he has decided to sign onto a bill with two Democrats. Lee said there’s growing support among the conservative base for a more restrained foreign policy.

“I think most conservatives feel this way. Sometimes there’s a lag time between where elected officials are and where the voting base is,” he said. “I’m anticipating a lot of Republicans coming on board.”

The Murphy-Lee-Sanders alliance is the latest bipartisan attempt to curb the executive branch’s national security authority.

In March, Sens. Todd Young (R-Ind.) and Tim Kaine (D-Va.) introduced a bill that would repeal the 1991 and 2002 AUMFs against Iraq. That bill has garnered 26 cosponsors in the Senate, and the House passed similar legislation last month.

More recently, Reps Andy Biggs (R-Ariz.) and Barbara Lee (D-Calif.) coauthored a letter on July 12 to President Joe Biden, criticizing the airstrikes he ordered on the Iraq-Syria border on June 27.

“The Constitution of the United States gives Congress the power to declare war, and the president the power to prosecute the war,” Biggs and Lee wrote. “The Constitution does not give the president, as ‘commander-in-chief,’ unlimited power to make war.”

Despite the growing bipartisan coalition, Murphy said on July 20 that he knows it will be an uphill battle to have the National Security Powers Act become law.

“Do I expect that the Biden administration is going to send out a statement of support for this legislation, or be eager to sign it? No,” Murphy said. “But our hope is that this bill … will stimulate a conversation in Congress that might give us the inspiration to use the powers we currently have to make sure we’re properly declaring war.”

Rep. James McGovern (D-Mass.) will introduce companion legislation to the National Security Powers Act in the “coming weeks,” according to Murphy. The senator, who chairs the Subcommittee on Homeland Security and sits on the Committee on Foreign Relations, said he hopes the legislation will at least be given a hearing.

“I’ve been in a very long conversation with the committee and the White House about this legislation. I’m hopeful we’ll be able to convince the committee to convene a hearing,” Murphy said. “I think this dovetails very nicely with the work Senator Kaine and Senator Young are doing.”