April 18, 2018
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:
- The Taliban
- Al-Qaeda in the Arab Peninsula
- ISIS anywhere
- Al-Shabaab in Somalia and elsewhere
- Al-Qaeda in Syria
- Al-Nusra in Syria
- The Haqqani Network in Pakistan and Afghanistan
- Al-Qaeda in the Islamic Maghreb in Niger, Mali, Algeria, Libya, and Nigeria
- 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.
Rand Paul, MD
United States Senator