On Tuesday, Senators Chris Murphy (D-Conn.), Mike Lee (R-Utah), and Bernie Sanders (I-Vt.) introduced the most promising war powers reform legislation in decades as part of the larger National Security Powers Act of 2021 (NSPA). There’s much to commend in this bipartisan, landmark bill that seeks to finally reset the balance of power between the political branches and restore Congress’ constitutional role in determining when the nation goes to war.
Sen. Lee succinctly explained why this legislation is so needed:
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 servicemembers are being lost in conflicts the people’s legislators never debated. In areas where the Constitution grants broad powers to Congress, Congress is ignored. The National Security Powers Act will change that and return these checks and balances to our government.
The NSPA restores a measure of democratic accountability to these most weighty national security decisions. Here, we’ll briefly address how the bill addresses the biggest flaws with the current War Powers Resolution of 1973 (WPR) that one of us (Tess) identified in testimony before the House Rules Committee in March and that we identified in a Good Governance Papers article on war powers reform. The short answer: it ticks all the boxes and then some.
1. The Definition of “Hostilities”
As explained here, “the term ‘hostilities’ is arguably the most important in the WPR.” It is the key term in three key parts of the current framework: “(1) introductions into ‘hostilities’ trigger a 48-hour reporting requirement” that puts Congress on notice of overseas deployments that could start a war; “(2) those ‘hostilities’ reports trigger the 60-day termination clock; and (3) the expiration of that clock, should ‘hostilities’ be ongoing after 60 days, in turn triggers the requirement that the President terminate those “hostilities” unless Congress has authorized them.
But for all its importance to the war powers framework, the term “hostilities” is not defined in the WPR. And instead of looking to the legislative history of the WPR to interpret the term “hostilities,” the Executive branch has advanced ever narrower interpretations over several decades based largely on its own prior practice. As we summarized last Fall:
[T]he Executive branch has argued since 1975 that the term hostilities is “definable in a meaningful way only in the context of an actual set of facts” – a “we know it when we see it” mode of statutory interpretation – and that it should only be understood to apply to situations when U.S. forces “are actively engaged in exchanges of fire with opposing units of hostile forces.” Presidents of both parties have argued that situations shy of “full military engagements,” in which “exposure” of U.S. forces is limited, or in which military engagements are “intermittent,” do not trigger the WPR’s 60-day termination rule. In short, the Executive Branch has afforded itself tremendous flexibility to skirt the automatic termination provisions of the statute.
How does the NSPA fix this central problem? In section 101(2), it includes a clear, concrete definition of hostilities with key features that do not leave room for the kind of interpretive gymnastics that have gutted the efficacy of the WPR to date:
The term “hostilities” means any situation involving any use of lethal or potentially lethal force by or against United States forces (or, for purposes of paragraph 4(B), by or against foreign regular or irregular forces), irrespective of the domain, whether such force is deployed remotely, or the intermittency thereof. The term does not include activities undertaken pursuant to section 503 of the National Security Act of 1947 (50 U.S.C. 5093) if such action is intended to have exclusively non-lethal effects.
This definition is more in line with what Congress intended when it enacted the WPR in 1973 — it explicitly covers situations where U.S. forces are using “lethal or potentially lethal force.” This would cover situations where they are giving or receiving fire, or getting into situations where either of those is likely. It makes clear that a state of “hostilities”exists regardless of whether U.S. forces or opposing forces are using force. It states that “remotely” deployed attacks (such as drone operations or over the horizon missiles) still count as hostilities. It specifies that hostilities may exist in any domain — which means lethal or potentially lethal cyber operations, for example, could trigger the WPR’s requirements.
The “hostilities” definition seeks to guard against Executive branch claims that the termination clock starts and stops every time a new round of shots is fired (known as the “intermittence theory”) by making clear that the use of lethal or potentially lethal force constitutes “hostilities” irrespective of the “intermittency thereof.” And finally, it contains a reasonable carve-out for covert action that is intended to be non-lethal in nature. This definition alone is a huge step forward for war powers reform.
2. The 60-Day “Termination Clock”
The requirement that the president must terminate hostilities after 60 days (or in narrow circumstances 90 days) unless authorized by Congress was intended to be a key enforcement mechanism for ensuring the president did not lead the United States into unauthorized wars. But, as explained here:
[T]wo failings of the current WPR framework have made it less effective than it might otherwise be. First… by narrowing the definition of “hostilities,” the Executive has claimed that most military engagements do not implicate the termination clock at all…. Second, the 60-day period… has come to be treated as “more or less free time during which the president is permitted to launch operations on the authority of his Art. II powers alone.”
As we wrote previously, “the solution is straightforward: Remove the temptation for the Executive branch” to engage in quick, unauthorized wars “by shortening the time on the clock from sixty to twenty days.” The NSPA does exactly that, providing a 20-day termination clock, extendable by 10 days (not the current 30) if the president certifies to Congress that “unavoidable military necessity involving the safety” of U.S. forces requires it. Section 106(c) provides:
If Congress does not enact a specific statutory authorization for United States forces to engage in hostilities… within 20 days after the introduction of United States forces into hostilities or a situation where there is a serious risk of hostilities, the President shall withdraw, remove, and otherwise cease the use of United States forces.
3. Enforcement through an Automatic Funds Cut-Off
Congress intended the WPR’s termination requirement to be backed by a key enforcement mechanism. It provided that Congress could, through the passage of a concurrent resolution by a majority vote in both houses, stop any unauthorized hostilities. But the 1983 Supreme Court decision INS v. Chadha, is generally understood to have gutted that provision by requiring acts of Congress to be signed by the president (or enacted by a veto proof majority) in order to have the force of law. Thus, as we previously explained, the 1983 decision “is widely viewed as rendering inoperable the concurrent resolution as a mechanism for Congress to require the withdrawal of U.S. forces; if it wants to bring troops home Congress must either secure the President’s signature or have sufficient votes to overcome a veto.”
This turns the Constitution’s intended balance of powers on its head: “instead of a majority of Congress having the power to authorize the President to initiate the use of force, a supermajority is required to stop the President from doing so.”
The NSPA rights this balance by including an automatic funds cut-off (section 108) for any activities by United States forces that do not comply with its terms. It links the enforcement mechanism to another core congressional power — the power of the purse — and does not require a vote, let alone a supermajority in both houses, to take effect. And a funding cut-off “has the added benefit of being backed by the Anti-Deficiency Act, which makes it illegal to ‘make or authorize an expenditure or obligation exceeding an amount’ appropriated or funded for a specified purpose.”
The funding cut-off also reinforces the impact of reducing the 60-day termination clock down to 20 days. As Tess wrote here, when a president knows that Congress must authorize any hostilities within a few weeks or expenditures must cease, the Executive branch “arguably will be more likely to use only that force that is absolutely necessary in self defense, rather than beginning a build-up for more extensive operations” that Congress has not blessed.
4. A “Bulwark” Against Future Boundless Wars
As Steve explained earlier today, the NSPA stands as “a bulwark against boundless, never-ending wars” by setting forth rigorous criteria that future force authorizations must meet in order to qualify as an authorization that pre-empts the termination 20-day clock and funding cut off. In particular, it contemplates that future use of force authorizations must be specific about the mission and the enemy that they cover, and that they won’t extend longer than two years, after which reauthorization is required.
Of course Congress may well find itself reauthorizing certain conflicts as a matter of routine. But the exercise of voting every two years will create opportunities for civil society and the broader public both to hear about the wars being fought in their name and to bring information to the attention of members about the conflicts they are enabling. It will also force more deliberation, and better coordination between the political branches, which should serve the greater goals of both conflict prevention and democratic governance.
5. Strengthened Transparency
In the War Powers Resolution Reporting Project at NYU’s Reiss Center on Law and Security, which contains a database of all reported hostilities submitted to Congress under the WPR since its enactment, Tess explained the value of these reports and also the serious shortcomings with current reporting practices. The NSPA strengthens the reporting requirements for situations of hostilities, defining much more clearly and thoroughly the information the president must provide to Congress.
It also fixes another problem with the current framework, in which the Executive branch can essentially go dark after an initial 48-hour report (currently, no further reporting is required during the entire time period prior to the expiration of the termination clock). The NSPA solves this by requiring initial reporting within 48 hours of an introduction of U.S. forces into hostilities (or a situation where there is a serious risk of hostilities), followed by more thorough reporting within 7 calendar days unless the president certifies that the forces have been withdrawn (or the situation that triggered the requirement has otherwise ceased) and does not intend to reintroduce them.
6. Leaving Intact the President’s Ability to Defend the Nation
Having both served as Executive branch lawyers, we understand well the need for the president to use force in self defense to repel an attack on U.S. forces, or to rescue U.S. nationals under immediate threat of attack, for example. The NSPA recognizes this (see section 102). But it does so without allowing the use of truly defensive force — which will, unfortunately, continue to be necessary in some circumstances — to turn into long-term entanglements or merge into other missions absent congressional involvement.
In 1988, as a Senator who was chair of a Senate Special Subcommittee on War Powers, President Biden expressed a view similar to what the NSPA would implement. Specifically, as Tess wrote here, Biden:
advocated for a “joint decision” model of war powers. He argued that the “President draws his independent authority not from some robust concept of the President as an all-knowing and nearly omnipotent Commander-in-Chief,” but from a limited “responsibility to protect the nation and its citizens from immediate threats.”
[The] presidential power to use force in the absence of statutory authorization derives from the concept of emergency: the need to repel an attack on the United States or its forces, to forestall an imminent attack, or to rescue United States citizens whose lives are imperiled. Conversely, any policy involving a sustained use of force must derive from an affirmative decision of the entire government, including Congress.
Perhaps what is most exciting about the NSPA is the boldness of its vision. As Steve wrote last year, prior efforts at war powers reform have sometimes ceded ground to the Executive branch “rather than recapturing the ground Congress has lost on matters of war and peace.” No one can say that of the NSPA. This bill is a giant leap forward for war powers reform. It has a long legislative road ahead, and there are surely tweaks that will strengthen it further as it progresses. But as it stands, it is a remarkable achievement that tackles all of the major shortcomings of the WPR as enacted and the pathologies in its implementation over the decades.
The current WPR was enacted over President Nixon’s infamous veto. We hope President Biden has the courage, and sees the long-term political benefit, of welcoming an opportunity to meaningfully engage with Congress on this bill with the goal of signing it into law. As a Senator, he saw the need for war powers reform. As we approach the end of two decades of war in countries and against groups that many Americans would struggle to name, that need is greater still. By working to pass this legislation, Biden can finally address that need, advance his legacy, guard against future forever wars, and strengthen democratic governance for years to come.
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