Below is the testimony of distinguished legal expert Jonathan Turley, Shapiro Professor of Law at George Washington University, from Senator Rand Paul’s hearing on “War Powers and the Effects of Unauthorized Military Engagements on Federal Spending.”
Professor Turley details the sad history of Congress refusing to do its constitutional duty by providing a check on executive war making, and he explains how the recent Authorization of Military Force, introduced by Senators Bob Corker (R-TN) and Tim Kaine (D-VA), would give the president a blank check to commit U.S. troops anywhere in the world without first obtaining any sort of authorization from Congress.
You can watch the hearing here and see Judge Andrew Napolitano's testimony here. Professor Turley's testimony can be read below or here.
Written Statement
Jonathan Turley
Shapiro Professor of Public Interest Law
The George Washington University
“War Powers and the Effects of vUnauthorized Military Engagements on Federal Spending”
Committee on Homeland Security and Governmental Affairs
Subcommittee on Federal Spending Oversight and Emergency Management
United States Senate
Dirksen Senate Office Building SD-342
June 6, 2018
I. INTRODUCTION
Chairman Paul, Ranking Member Peters, and members of the Subcommittee,
my name is Jonathan Turley and I am a law professor at The George
Washington University, where I hold the J.B. and Maurice C. Shapiro Chair
of Public Interest Law. It is a distinct honor to appear before you today to
discuss one of the most important powers contained in our Constitution: the
declaration of war by the Legislative Branch.
I come to this question as both an academic and a litigator in the field.
My past writings address the separation of powers, war powers, and the
military.1 I am also the former lead counsel for both Democratic and
Republican members in challenging the undeclared war in Libya under the
Obama Administration. My prior litigation also includes representing the
United States House of Representatives in its successful challenge to the
unauthorized use of federal funds in Obamacare. I am admittedly an
unrepentant Madisonian scholar and, as such, I tend to favor a robust and
active role for Congress. I have previously testified against the
encroachment of the Executive Branch and the growing imbalance in our
tripartite system of governance. The rise of an uber presidency has
threatened the stability of our system. Much of this imbalance is due to the
acquiescence of Congress in yielding greater and greater authority to the
Chief Executive. The legislation under consideration today is one of the
most chilling examples of this acquiescence and the danger that it presents
for future generations.
There can be no weightier issue for Congress than the conditions
under which this nation goes to war. The costs of such decisions are real,
immediate, and often catastrophic for many families. If there is a sacred
article in the Constitution, it is Article One, Section Eight. It is not merely a
constitutional but a moral responsibility. Indeed, the words "Congress shall
have power to ... declare War,” fails to capture the moral imperative. It is
not simply a power but rather an obligation that was meant to adhere to
every member upon taking the office of office. Unfortunately, from the
earliest stages of our Republic, members have struggled to avoid the
responsibility for declarations of war. Regrettably, the new Authorization
for the Use of Military Force, S.J. Res. 59, is the inevitable result of this
long history of avoidance. Despite some improvements, the thrust of the
proposed legislation is to give members a statutory shield from their
constitutional obligations over war making.
The new AUMF amounts to a statutory revision of one of the most
defining elements of the United States Constitution. Putting aside the
constitutionality of such a change absent a formal amendment, the proposed
legislation completes a long history of this body abdicating its core
responsibilities over the declaration of war. Indeed, Columbia Professor
Matthew Waxman recently offered what appears to be a collective shrug to
the obvious negation of the original design and intent of the Framers. In
speaking of the lack of a finite period of authorization in this legislation,
Waxman observed that “We’ll be engaged in an indefinite war either way.”2
If anything Waxman was understated. We are engaged in indefinite,
undeclared war – the very menace that the Framers sought to prevent with
express constitutional language requiring congressional declarations of war.
We find ourselves at this ignoble point not by accident but through decades
of concerted effort by Congress to evade the responsibility for the most
important decisions committed to it by the Framers. Yet, due to the
artificially narrow standing rules created by the federal courts, the
unconstitutionality of such a change may never be subjected to judicial
review.3 Thus, this legislation could prove not only unconstitutional but
unreviewable – an absurd position that would have mortified the Framers.
What we will be left with is indefinite undeclared war.
As discussed below, the new legislation would discard not just the
obligation to declare wars but even the obligation to secure prior
authorization for specific wars. If Congress implements this new system,
Article I, Section 8 will be left as little more than a husk of its original
design. Worse yet, the country will be left with a constitutional provision
that gives citizens a false assurance of a check on war powers. The
provision speaks loudly and clearly to Congress. However, the new AUMF
would reduce it to what Macbeth described as voices “full of sound and furry, signifying nothing.”
II. A Brief Historical Overview
In both the constitutional and ratifying conventions, the Framers carried out
passionate and detailed debates over the role of the “Chief Magistrate,”
including whether the presidency should actually be a committee of three to
avoid the concentration of powers in the hands of one person. The
overwhelming sentiment was that a president could not be trusted with the
sole authority to go to war. That was evident at the Constitutional
Convention when Pierce Butler proposed “vesting the power in the President,
who will have all the requisite qualities, and will not make war but when the
nation will support it.”5 He did not even receive a second to the motion.
The deep suspicion over the role of chief executive was captured in
the warning of Edmund Randolph that the creation of a single executive
would be the very “foetus of monarchy.”6 The compromise for such
delegates was to deny the president certain powers like the power of the
purse or the unilateral appointments of senior officials. However, the most
prominent concern was the ability of a president to commit the country to
war. This led to one of the most defining provisions of the Madisonian
system: to leave the decision to go to war with Congress rather than the
president. After framers like James Wilson voiced fears of an elected
monarch, their colleagues responded by denying the president the power
most associated with absolute rulers in the declaration of war. In the
Pennsylvania Ratifying Convention, Wilson assured his colleagues that the
greatest danger of a chief executive had been blunted through the declaration
requirement:
“This system will not hurry us into war; it is calculated to guard
against it. It will not be in the power of a single man, or a single body
of men, to involve us in such distress; for the important power of
declaring war is vested in the legislature at large: this declaration must
be made with the concurrence of the House of Representatives: from
this circumstance we may draw a certain conclusion that nothing but
our interest can draw us into war.”7
The framers saw presidents as the most likely to engage in foreign military
excursions. James Madison said it most succinctly in a letter to Jefferson:
“The constitution supposes, what the History of all …
demonstrates, that the Executive is the branch of power most interested in
war, and most prone to it. It has accordingly with studied care, vested the
question of war in the Legislature.”8 This key division of authority was
celebrated as the solution to the intractable problem of the predisposition of
chief executives toward war. Wilson proclaimed that “this system will not
hurry us into war … It will not be in the power of a single man … to involve
us in such distress . . . ” Jefferson stated in a letter to Madison that the
Framers had achieved an “effectual check to the Dog of war.”9 Even
Alexander Hamilton, an advocate for a strong chief executive, heralded the
key limitation on presidents in Federalist #69, stating that a president
“would be nominally the same with that of the King of Great Britain,
but in substance much inferior to it. It would amount to nothing more
than the supreme command and direction of the military and naval
forces, as first general and admiral of the confederacy; while that of
the British king extends to the declaring of war, and to the raising and
regulating of fleets and armies; all which by the constitution under
consideration would appertain to the Legislature.”10
What is most striking about these and other accounts is that the Framers
believed that Article I, Section 8 was one of the greatest triumphs of the
convention where they had established clear and undeniable obligations for
Congress. As Madison proclaimed in 1793, “the simple, the received and
the fundamental doctrine of the constitution, that the power to declare war
… is fully and exclusively vested in the legislature; that the executive has no
right, in any case to decide the question, whether there is or is not cause for
declaring war ....”11
These assumptions were quickly undone by the political impulse of
members to avoid responsibility over costly and unpredictable wars. The
compromise would become a rule honored almost exclusively in the breach.
In our roughly 250-year history, our country has been in dozens of largescale
military campaigns or wars. Yet, Congress has “declared war” only
five times - the War of 1812, the Mexican-American War, the Spanish-
American War, World War I, and World War II. There have been a total of
eleven declarations issued against different countries in the five declared
wars. Political convenience has trumped constitutional principle.
We did not even make it out of the eighteenth century before
Congress found an alternative to a declaration. In 1798, it passed An Act
Further To Protect The Commerce of the United States, which was then used
by John Adams to launch the Quasi-War with France. That legislation would
be a harbinger of the gradual erasure of the declaration provision. Faced with
the seizure of ships and other acts of war, Congress decided to pass a
generally worded measure “more effectually to protect the Commerce and
Coasts of the United States,” which authorized the President to instruct
military commanders to act against any “armed vessel” committing
“depredations on the vessels” belonging to United States citizens.12 It further
authorized the retaking of seized ships and later was amended to allow
commanders to “subdue, seize and take any armed French vessel which shall
be found within the jurisdictional limits of the United States, or elsewhere,
on the high seas . . . ”13 The legislation authorized acts of war without
formally declaring one, though this would be far more specific than later
resolutions. This practice allows members a degree of political cover in
passing legislation ostensibly to protect things like shipping while really
giving a president the right to wage war. Not only did Congress fail to
adhere to the language of the Constitution but the Supreme Court also failed
to maintain the clear lines of the Constitution in requiring a declaration.
Once Congress was allowed to avoid responsibility for a declaration, this
approach yielded more and more generally worded authorizations that gave
members plausible deniability if wars went badly.
In 1812, James Madison, as president, went to Congress to demand
that members carry out their express obligations under Article I. He
reminded Congress that declarations are not simply a bulwark against the
concentration of power in the hands of a single person. They are a vital
declaration of a free people before taking the most extreme measure as a
nation:
“Whether the United States shall continue passive under these
progressive usurpations and these accumulating wrongs, or, opposing
force to force in defense of their national rights, shall commit a just
cause into the hands of the Almighty Disposer of Events … is a
solemn question which the Constitution wisely confides to the
legislative department of the Government. In recommending it to their
early deliberations I am happy in the assurance that the decision will
be worthy the enlightened and patriotic councils of a virtuous, a free,
and a powerful nation.”14
A declaration therefore serves to rally a nation to speak as one in a clear and
informed voice. Such collective judgments are not always easy to secure.
They were not supposed to be. The Framers largely abhorred war and its
costs. They wanted to make it difficult by imposing an obligatory condition
on Congress. A nation needs clarity and consensus before unleashing, as
Jefferson puts, the “dogs of war.”
Yet, it is precisely that clarity and burden that politicians abhor. It
comes at a cost that has become easier and easier to evade. Our last
declaration of war was in 1942. Since that time, we have engaged in open
warfare in dozens of countries with hundreds of major military operations.
Presidents now have precisely the authority that the Framers sought to deny
them under the express language of our Constitution. Our current use of
AUMFs flies in the face of both the language and intent of the Framers.
Indeed, it makes a mockery of the statement of George Washington in 1793
that “The Constitution vests the power of declaring war in Congress;
therefore no offensive expedition of importance can be undertaken until after
they have deliberated upon the subject and authorized such a measure.”15
On a weekly basis, we see “offensive expedition of importance”
undertaken under the ambiguous authorizations of Congress.
III. THE AUMF, CONSTITUTIONAL AVOIDANCE, AND THE
CONSTRUCTIVE REPEAL OF ARTICLE ONE, SECTION EIGHT
The path to our current state of indefinite war was a long but straight
progression from a requirement of a clear declaration to open-ended
AUMFs. This path took the country through the infamous Gulf of Tonkin
incident on August 4, 1964 – an alleged attack on the USS Maddox that
became the pretext for the Vietnam War. If Congress believed that the
attack was genuine, it was an act of war but again members did not want to
take the responsibility for a formal declaration. Instead, it passed a resolution
on August 7, 1964, stating “Congress approves and supports the
determination of the President, as Commander in Chief, to take all necessary
measures to repel any armed attack against the forces of the United States
and to prevent further aggression.” It was a flagrant circumvention of the
Constitution by members of this institution that would costs the lives of tens
of thousands of American military personnel and ultimately shatter the lives
of millions. Nevertheless, it was the political costs that Congress sought to
avoid and members simply externalized the real and tragic costs to families
throughout this nation.
After allowing this nation to go into an undeclared war of dubious
origins, Congress was faced with a backlash from the public. It then became
popular to limit authority. However, rather than default back to the express
language of the Constitution, Congress passed the War Powers Act.16 The
Act allowed a President to use U.S. forces in combat in the event of “a
national emergency created by attack upon the United States, its territories
or possessions, or its armed forces.” However, it required the Executive
Branch to report to Congress within 48 hours of such a military action, and
required Congress to approve or reject the military action. Notably, such
approval reflects an ongoing military campaign. Yet, Congress would not
require prior approval or a formal declaration. Nevertheless, the resolution
was an effort to require congressional involvement. It was a sad reflection of
how far Congress had pushed itself into institutional obsolescence. It was
passing a resolution to try to remain relevant to war making.
Passed on September 14, 2001, the AUMF continues this ignoble
record in 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.” While some of us opposed the
language as wildly ambiguous and an effective blank check of undeclared
wars, members eagerly passed it. It notably went as far as to approve “all
necessary force” with no termination date. Not surprisingly, it was then used
to launch extended military operations in Afghanistan, Pakistan, Yemen,
Somalia, Syria, Iraq, and Libya. This included ground forces, drone strikes,
and the detention of thousands, including the establishment of the detention
center at Guantanamo Bay. It allowed the targeting of groups loosely
defined as connected to Al Qaeda, including ISIL and other groups that have
attacked Al Qaeda and its allies. According to the Congressional Research
Service, this broad authority has been used 37 times in 14 countries for acts
of war.
The 2001 AUMF embodies the key motivations behind the
circumvention of Article I. First, it avoids the personal accountability for
members to declare war and, second, it allows plausible deniability after
wars go wrong. After it was shown that the Bush Administration had
launched the war in Iraq on false representations of weapons of mass
destruction, various members (particularly presidential candidates) blamed
the Administration for the war and its costs. They cited the general language
and insisted that they never intended a war with these costs and duration.
The new AUMF reflects many of these same flaws while adding new
and disturbing elements. Admittedly, some of the flaws in this legislation
existed in some form in prior AUMF. The new measure would repeal the
2002 AUMF and partially repeal the 2001 AUMF. However, a number of
prior flaws – and new flaws – are evident in the new legislation, which
would not materially alter the scope or unilateral character of current
military campaigns. Indeed, it could make it far, far worse.
Before addressing some of these inherent dangers, it is important to
make a threshold objection to this and prior AUMF debates. There is a
certain path dependence that is evident in war powers debates. After
decades of open-ended resolutions, it is easy to confine the debate to simply
one of scope and standards rather than the original threshold constitutional
question. However, the original question remains. The Constitution allows
ample leeway for presidents to respond to attacks on this country. A
president has never been denied the right to respond to imminent attacks on
the United States. Absent such an imminent threat, the Constitution requires
a declaration of war. That requires a Congress to identify the enemy and the
reason for going to war. Many insist that the realities of modern war simply
do not allow for such clear determinations. In other words, we need to be in
continual war in too many places to seek individual authorizations. Yet, the
modern history of war making in the United States only shows the wisdom
of the Framers. Since breaking away from the clarity of Article I, we have
found ourselves in endless war where the targets are not even widely known
by the public. The United States is now at war in places like Yemen and
Somalia where we are simply seeking to degrade military capabilities of
terrorist groups as opposed to responding to a specific threat against the
United States.
If we did not have an AUMF, it is indeed possible that we would not
have the range of military operations that we have today. We have never
had that debate. As a result, citizens have no idea of the full range of
countries where we are currently engaged in combat. We no longer require
presidents to make that case and no longer require members to assume that
responsibility. The assumption that AUMFs are now essential components to
modern governance is hardly self-evident but, more importantly, it is
inconsistent with the express language of our Constitution.
For civil libertarians, the most glaring element to this debate is that
the long failure of Congress to assert its constitutional authority has led the
Executive Branch to claim a type of expanded authority by default. The
Office of Legal Counsel of the Department of Justice (OLC) previously
advised President Obama that he had the authority to attack Libya without
either an imminent threat to the United States or express authority from
Congress. It argued that Article I could now be interpreted through a
“historical gloss” of past unilateral military actions and the absence of
congressional opposition. A second OLC memorandum issued on May 31,
2018 built on this “historical gloss” and said that President Donald Trump
could also launch attacks on Syria without involving Congress. These
opinions seek to make congressional acquiescence into a critical element of
constitutional interpretation.
With that threshold reservation, I would like to address what I
consider the most serious flaws in the current legislation.17
A. “New Foreign Countries”
The new legislation uses rather opaque means to convey authority to
continue military operations against various states – wars that have never
been fully debated, let alone declared, by Congress. Buried in the legislation
is the following definition in Section 5 (c) that works as an effective
authorization:
“In this resolution, the term ‘‘new foreign country’’ means a foreign
country other than Afghanistan, Iraq, Syria, Somalia, Yemen, or Libya
not previously reported to Congress pursuant to this paragraph.”
Accordingly, we will “by definition” still be at war in these countries
without the President having to come to Congress to make the case for wars
in six foreign countries. Members can authorize large-scale ground, air, and
naval operations through this innocuous section. We have gone from a
required vote of declaration to the adoption of a definition.
As for truly new countries, we have yet again a post hoc process for
inclusion:
“NEW FOREIGN COUNTRIES.—Not later than 48 hours after the
use of military force in a new foreign country pursuant to this joint
resolution, the President shall submit an updated report required by
this paragraph and consult with the appropriate congressional
committees and leadership. Authorization for use of military force
pursuant to this joint resolution in a new foreign country is contingent
upon the reporting to Congress pursuant to this paragraph.”
Congress is again left with the option of a joint resolution countermanding
the inclusion of a new country. This, however, is less than what the Framers
gave Congress: the right (and obligation) to affirmatively approve such wars.
Congress may act on a question that it is required to act on under Article I,
Section 8. That is not a codification but a substitution with less power and
responsibility for members.
B. “Associated Forces”
One of the greatest concerns after 9-11 has been the apparent license
given to the United States to attack groups anywhere in the world under the
loosely defined conditions of prior AUMFs. The new legislation would leave
in place the authorization of “necessary and appropriate force” against
certain non-state groups and departs from the past open-ended authorization
wars, members eagerly passed it. It notably went as far as to approve “all
necessary force” with no termination date. Not surprisingly, it was then used
for war against “nations” deemed to be harboring targeted groups. Under the
new authorization, targeted groups would not include a “sovereign state.”
The specificity however is illusory. For example, a president can include
new “associated forces” as well as new countries unless Congress passes a
bill to specifically prevent it. The bill essentially places a specific list of
authorized targets in a sea of ambiguity. Take Section Five. It appears to
offer a concrete list of designated forces including (a) Al Qaeda in the
Arabian Peninsula, (b) Al Shabaab, (c) Al Qaeda in Syria (including Al
Nusrah Front), (d) the Haqqani Network, and (e) Al Qaeda in the Islamic
Mahgreb (AQIM). That would seem to correct the endlessly expanding list
of groups under the prior AUMFs. However, the Congress would then add
the following:
“(2) DESIGNATION.—Not later than 30 calendar days after the date
of the enactment of this joint resolution, the President shall designate
all organizations, persons, or forces other than those listed in
paragraph (1) that the President has determined are associated forces
covered by the authorization for use of military force provided by
section 3(a) of this joint resolution by submitting to the appropriate
congressional committees and leadership a report listing all such
associated forces.”
Thus, the list constitutes only the initial designations on a list to be
supplemented unilaterally by the President. What is curious is that the
window for the initial expansion is just 30 days after enactment. Why?
Rather than demand a full initial list to be submitted, the law allows a shorter
list to be voted on with the ability to then expand the list after the matter is
removed from the public debate. However, that is not nearly as worrisome as
what follows:
“(3) NEW ASSOCIATED FORCE.—Not later than 48 hours after the
President determines that a new organization, person, or force is an
associated force covered by the authorization for use of military force
provided by section 3(a) of this joint resolution, the President shall
designate such organization, person, or force as an associated force by
submitting a report to the appropriate congressional committees and
leadership.”
Thus, the initial listing is largely irrelevant as a guarantee of specific
authorizations. It leaves the appearance of specific authorizations but then
allows the President to unilaterally add new groups to the list. As discussed
below, this misleading structure is then coupled to an ex postprovision
allowing for congressional action if they disagree with the President. Given
the ever changing movement of these groups, the initial list is likely to be
meaningless. Moreover, past administrations have shown little restraint in
adding groups to the list of targets under the most tangential connections to
stated AUMF conditions. This law removes the need for pretense in past
efforts to tie groups to Al Qaeda or other authorized targets. The President
may simply add the groups to the list knowing that few politicians will have
the temerity to question the inclusion of an alleged terrorist group.
The proposed AUMF codifies the rule that it is better to ask for
forgiveness than permission. It is highly unlikely that politicians will vote to
specifically remove the name of an alleged terrorist group from an
authorization list. Even without adding new foreign states to the list, the
AUMF still allows for attacks on foreign territory of “associated forces”
located within those countries. Under international law, such attacks
committed with the approval of a sovereign nation is considered an act of
war absent narrow exceptions. The protections therefore are practically
meaningless. Congress and the White House have previously shown a
disinclination to declare wars against other nations in favor of basing attacks
on groups within the territory of those nations.
C. The Shift From Ex Ante To Ex Post Action
The most disturbing element in the new AUMF is the authority of a
president to add new targets or expand the scope of the AUMF at his sole
discretion – requiring Congress to pass a bill later if it wants to preserve the
original scope passed in the AUMF. It is the final abandonment of the
structure expressly set into place in the Constitution by the Framers. The
Congress first abandoned the express requirement of a declaration of war. It
then abandoned the need for specific authorizations of force in favor of
broad categories of possible enemies. Now it is dispensing with the need for
any prior authorizations to attack specific targets. The constitutional
requirement for a declaration would be substituted with a requirement that a
president inform Congress after the fact:
“(B) NEW FOREIGN COUNTRIES.—Not later than 48 hours after
the use of military force in a new foreign country pursuant to this joint
resolution, the President shall submit an updated report required by
this paragraph and consult with the appropriate congressional
committees and leadership. Authorization for use of military force
pursuant to this joint resolution in a new foreign country is contingent
upon the reporting to Congress pursuant to this paragraph.”
Members are fully aware that, even if a majority of members could be
found to oppose a war in another country, it is highly unlikely that they
could muster a veto-proof majority. The Corker-Kaine proposal achieves the
long-sought goal of members to remove themselves from responsibility over
war. These belated votes allow for members to register what are effectively
symbolic votes while being able to claim that they had little real voice – or
responsibility – in a war that goes badly. It would not only constructively
repeal the War Powers Resolution but also Article I, Section 8. In so doing,
it allows for endless war and zero accountability.
This adoption of an ex post role for Congress is made all the more
serious by realities of modern budget practices. It is now routine for
Congress to approve billions of largely unrestricted funds (beyond broad
purposes of defense) to the Defense Department and other agencies. Indeed,
when I represented both Democratic and Republican members challenging
the Libyan War, we showed how the Administration funded an entire
military campaign by shifting billions in money and equipment without the
need to ask Congress for a dollar. It was a war essentially funded from loose
change owing to the failure of Congress to fully carry out its constitutional
duties over appropriations. President Obama not only said that he alone
would define what constitutes a war but unilaterally funded the war as just
another discretionary expense. Federal appropriations have become so fluid
and discretionary spending so lax that presidents are now more insulated
than ever before from the threat of de-funding. Thus, Congress combined a
failure to shoulder its duties over the declaration of war with a failure to
shoulder its burden over appropriations. It has given presidents both a blank
check to launch wars with an actual blank check to fund them.
Clearly, the power of the purse can still be used effectively as a check
on the Executive Branch if Congress were to be inclined to exercise its
inherent authority. Congress needs to be more specific on the use of funds
and reduce the degree to which funds are given for discretionary uses,
particularly during periods of circumvention and tension. However, the
historic failure to exercise greater control over appropriations only magnifies
the dangers over the failure to exercise control over war making. Indeed it
may be inaccurate to call this a “blank check.” Checks usually state the
purpose and require some verification. This is more like constitutional cash.
D. Lack of A Sunset Provision
The new AUMF would also dispense with even the need to
reauthorize these sweeping powers. Indeed, members would succeed in this
legislation from having to take any vote at all – a total abandonment of the
role expressly dictated in Article I. Section 4 states:
“(a) PRESIDENTIAL SUBMISSION.—On January 20, 2022, and
again every 4 years thereafter, the President shall submit to Congress
a report regarding the use of military force pursuant to this joint
resolution, which shall include a proposal to repeal, modify, or leave
in place this joint resolution.
(b) EXPEDITED CONGRESSIONAL RECONSIDERATION.—
During the 60-calendar day period beginning on January 20, 2022,
and again every 4 years thereafter, a qualifying resolution to repeal or
modify this joint resolution shall be entitled to expedited
consideration pursuant to section 9 of this joint resolution.”
Thus, rather than simply placing a sunset date that requires affirmative
congressional approval, the legislation would allow for literally endless wars
without congressional action. The onus would be on the President every
four years to seek changes that he or she would prefer. Otherwise, the
Congress is relegated to the right to act every four years or during the 60-day
period starting on January 20, 2022. The new legislation would literally put
our endless war on autopilot. It is final proof that Madison may have been
wrong in his faith that members would fight jealously to protect their
constitutional authority. While Madison hoped in Federalist No. 51 that
“ambition must . . . counteract ambition,” members have shown little
institutional fidelity as they worked toward their own institutional
obsolescence.
IV. CONCLUSION
The new AUMF would codify the long-sought desire of Congress to
be a mere pedestrian to the prosecution of wars by the United States. Rather
than seek to amend the Constitution to affirmatively surrender its
institutional authority, members are constructively rewriting Article I,
Section 8 in a more user-friendly form that does not require express
declarations or even reauthorizations. It would combine this abdication of
authority with its long-standing failure to limit the use of appropriated funds.
This blank check therefore will have not only an unstated purpose but an
unstated amount. Under those conditions, we have already had roughly 17
years of war and could just as well have170 more.
I have had the honor of testifying many times in both houses of
Congress. Today, however, I took two of my four children out of school to
come to this hearing. My sons Aidan and Jack are sitting behind me. I felt
that they should be here to watch part of this process because they could
well be asked to pay the ultimate price for wars started under this sweeping
authority. If called, I know that they would do their duty as did their
grandfather, great grandfather, and prior generations of our family in our
wars. The question is whether members of this body will do their duty as
laid out in our Constitution and reject this proposed AUMF.
I thank you again for the honor of appearing today and I am happy to
answer any questions that you might have.
Jonathan Turley
Shapiro Professor of Public Interest Law
George Washington University
2000 H St., N.W.
Washington, D.C. 20052
202-994-7001
jturley@law.gwu.edu
1 See, e.g., Jonathan Turley, Madisonian Tectonics: How Form Follows Function in Constitutional and Architectural Interpretation, 83 GEO. WASH. L. REV. 305 (2015); Jonathan Turley, A Fox in the Hedges: Vermeule’s Vision of Optimized Constitutionalism in a Suboptimal World, 82 U. CHI. L. REV. 517 (2015); Jonathan Turley, Recess Appointments in the Age of Regulation, 93 B.U. L. REV. 1523 (2013); Jonathan Turley, The Rise of the Fourth Branch of Government, WASH. POST (May 24, 2013); see also Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2013 WIS. L. REV. 965 (2013); Pax Militaris: The Feres Doctrine and the Retention of Sovereign Immunity in the Military System of Governance, 71 George Washington Law Review 1-90 (2003); The Military Pocket Republic, 97 Northwestern University Law Review 1-134 (2002); Tribunals and Tribulations: The Antithetical Elements of the Military Justice System in a Madisonian Democracy, 70 George Washington Law Review 649-769 (2002).
2 Congress Wrestles With New War On Terror Authorization, NBC News, April 16, 2018.
3 I have previously testified on the impact of narrow (and in my view unwarranted) standing rules that often place glaring unconstitutional acts beyond the reach of judicial review. See, e.g., United States House of Representatives, House Committee on Science, Space, and Technology, “Affirming Congress' Constitutional Oversight Responsibilities: Subpoena Authority and Recourse for Failure to Comply with Lawfully Issued Subpoenas,” September 14, 2016; United States House of Representatives, House Judiciary Committee, Regulatory Reform, Commercial and Antitrust Law, “Examining The Allegations of Misconduct of IRS Commissioner John Koskinen” June 22, 2016; United States Senate, Committee on Homeland Security and Governmental Affairs, “The Administrative State: An Examination of Federal Rulemaking,” April 20, 2016; United States House of Representatives, House Judiciary Committee, Regulatory Reform, Commercial and Antitrust Law, “The Chevron Doctrine: Constitutional and Statutory Questions in Judicial Deference to Agencies,” March 15, 2016; United States Senate, Confirmation Hearing For Attorney General Nominee Loretta Lynch, United States Senate Committee on the Judiciary, January 29, 2015; United States House of Representatives, “Authorization to Initiate Litigation for Actions by the President Inconsistent with His Duties Under the Constitution of The United States” Before the H. Comm. On Rules, 113th Cong., July 16, 2014; United States House of Representatives, “Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws” Before the H. Comm. on the Judiciary, 113th Cong., February 26, 2014; United States House of Representatives, The President's Constitutional Duty to Faithfully Execute the Laws Before the H. Comm. on the Judiciary, 113th Cong., December 2, 2013; United States House of Representatives, Committee on the Judiciary, “Executive Overreach: The President's Unprecedented “Recess” Appointments,” February 15, 2012.
4 WILLIAM SHAKESPEARE, MACBETH, act 5, sc. 5 (Barbara A. Mowat & Paul Werstine eds. 1992)
5 The Records of the Federal Convention of 1787 318-19 (Max Farrand ed., rev. ed. 1966).
6 The Records of the Federal Convention of 1787 65-66 (Max Farrand ed., rev. ed. 1966).
7 2 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787, at 528 (1836).
8 Letter from James Madison to Thomas Jefferson (Apr. 2, 1798), in 6 The Writings of James Madison 311, 312 (Gaillard Hunt ed., 1906).
9 Letter from Thomas Jefferson to James Madison (Sept 6, 1789), in Julian P. Boyd, ed, 15 The Papers of Thomas Jefferson 392, 397 (Princeton 1958).
10 THE FEDERALIST No. 69, supra, at 448 (Alexander Hamilton)
11 JAMES MADISON, Letters of Helvidius (Aug.-Sept. 1793), in6 THE WRITINGS OF JAMES MADISON 174 (Gaillard Hunt ed., 1906).
12 An Act More Effectively To Protect The Commerce and Coasts of the United States, ch. 48, 1 Stat. 561 (1798).
13 Id.
14 James Madison, Message to the Senate and House of Representatives (June 1, 1812), in 2 A Compilation of the Messages and Papers of the Presidents 484, 489-90 (James D. Richardson ed., 1897)
15 Letter from President George Washington to Gov. William Moultrie (Aug. 28, 1793), in 33 The Writings of George Washington 73, 73 (John C. Fitzpatrick ed., 1940).
16 The continued failure of self-professed textualists in Congress to follow the language of Article I, Section 8 remains a long-standing glaring and troublesome conflict. I have written about this disconnect for years. See Jonathan Turley, How Presidents Start Wars Military History Magazine (Cover feature story), July/August 2007, at 1; see also Jonathan Turley, Textualists and Originalists Are Again AWOL in Wars on Syria and Yemen, The Hill, April 1, 2017; Jonathan Turley, War – What it is Good For, USA Today, February 15, 2007, at 13A; Jonathan Turley, Can Congress Stop the War?, USA Today, January 18, 2007, at 13A Jonathan Turley, A Check on Wartime Power, The National Law Journal, March 7, 2005, at 34; Jonathan Turley, A War Powers Quandary, The Los Angeles Times, December 21, 2001, at A19; Jonathan Turley, Cries of "War" Stumble Over the Law, The Los Angeles Times, Sept. 13, 2001, at A2l.
17 My testimony focuses on the separation of powers issues and Article 1, Section 8 implications of the new AUMF. There are, however, additional serious flaws in the legislation, including the potential for tremendous abuse in the detention of both citizens and non-citizens. Section 10, entitled “Conforming Amendment,” would by effect expand the scope of the National Defense Authorization Act for Fiscal Year 2012 (NDAA). This includes the NDAA’s controversial indefinite detention provision. There is a real question as to whether the sweeping language of this AUMF in combination if the NDAA could be used to hold citizens indefinitely, though such an abuse would hopefully trigger a challenge in the courts.
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PDFTags: war powers act