Steps Congress can Take to Reassert its War, Spending and Emergency Powers in the 117th Congress

The continued minimization of Congress’s institutional role leads to an out-of-balance reliance on other parts of our government.

Issues such as national emergencies, war powers, arms sales and defense spending are well within Congress’s purview and all areas where the Executive Branch has enjoyed outsized control. The last Congress discussed and introduced multiple pieces of bipartisan legislation to reign in these Executive powers, but there are still opportunities for the 117th Congress to expand upon these efforts.

Reforms such as amending the National Emergencies Act and War Powers Resolution; revising the 2001 and 2002 Authorizations for Use of Military Force (AUMFs); and placing more controls on Pentagon spending and arms sales were all issues seriously discussed and advocated for in the 116th Congress. Encouragingly, each plan was bipartisan, which offers a hopeful forecast for the 117th Congress.

Roughly 80 percent of Americans disapprove of how Congress does its job. Yet the public’s frustrations are not a recent phenomenon. Aside from a few brief spikes, congressional approval rates rarely rise above 50 percent and have not gone above 30 percent in 10 years. Similarly, Congressional leaders routinely poll lower than the president—even leaders from the same political party. These numbers are even more discouraging compared to their federal counterparts. Few presidents, even in their darkest days, have reached similar lows. And the Supreme Court routinely stays above 50 percent approval and has surpassed 60 percent several times in the last 20 years.

An unpopular branch of government comes with increasing pessimism, and fewer expectations that it is up to the job of serving the American people. Regrettably, the 116th Congress will go down as one of the least-productive Congresses in recent history. Indeed, President Trump’s impeachment and the COVID-19 pandemic significantly impacted Congress’s productivity, but its decreasing accomplishments have followed an unfortunate and recognizable trend. But irrespective of Congress’s struggles, public enthusiasm for economic growth, maintained security and even political change remains. If Congress abdicates from its responsibility, Americans will look elsewhere for help.

It is perhaps no surprise, then, that voters named Supreme Court appointments as the third most important issue for the 2020 Presidential election, only behind health care and the economy. Shockingly, the concern over future Supreme Court seats even beat out the government’s handling of the coronavirus outbreak.

The rhetoric of lawmakers themselves often suggests that the Supreme Court enjoys more say in legislating than the legislature itself. Last year, Sen. Mitch McConnell (R-Ky.) remarked that his “top priority” as Senate Majority Leader— a decisive role that sets the legislative agenda for the Senate— was “changing the court system” through judicial confirmations. During the recent confirmation of Justice Amy Coney Barrett, Senate Minority Leader Chuck Schumer (D-N.Y.) remarked that her confirmation could “turn back the clock” on a number of topics, including health care, employee rights and environmental protections. Read together, these statements would suggest that congressional leaders believe that Congress is near powerless to enact new laws or improve ones successfully challenged in federal courts.

An absent legislature not only helps to politicize the judiciary, but it also disproportionately empowers the Executive Branch. Take two issues recently discussed on the 2020 campaign trail: guns and immigration. As a Senator and presidential candidate, now Vice President Kamala Harris pledged that she would give Congress 100 days to “pass reasonable gun safety laws” or—as President—she would “take executive action” to do so, supplanting the congressional role in the debate. Similarly, the Deferred Action for Childhood Arrivals (DACA) program, an often-debated topic in immigration policy, was created by the Department of Homeland Security (DHS) during the Obama administration, notably without congressional approval. The Trump administration attempted to unilaterally end the DACA program but was unsuccessful. In June, the Supreme Court found that the DHS’s attempt to rescind DACA violated the Administrative Procedure Act. But the decision was narrow, and there is no dispute that the Executive has the power to rescind DACA. The Biden administration is expected to restore DACA to Obama-era protections by executive order. Here, in each instance, there was little discussion of a more permanent legislative solution. Instead, these laws are more commonly perceived to be written and enforced by the stroke of an executive’s pen.

The continued minimization of Congress’s institutional role leads to an out-of-balance reliance on other parts of our government. Courts often face the political brunt of policy debates that are more appropriately settled on legislative floors than courtrooms. All the while, the Executive Branch grows in power, leading to an outsized reliance on the president to solve all our nation’s woes and singularly dictate political priorities, setting the groundwork for abuse and insufficient debate.

One of the most prominent examples of congressional minimization is how the nation conducts its foreign policy and overly defers responsibility to the president in times of crisis. Today, the president dictates nearly all foreign policy—including whether to go to war or enter agreements with foreign nations—while Congress is expected to follow behind and offer post hoc approval. Not only is this lack of political collaboration poor strategy, but it is also constitutionally unsound. Indeed, although the president is the commander in chief, Congress has the power to declare war and raise and support armies.

Similarly, while Congress holds the “power of the purse,” defense spending and arms sales are insufficiently scrutinized. And when controversies do emerge, Congress often finds itself unable to push back against executive action, largely due to legal roadblocks Congress itself has previously established.

On the domestic front, the president enjoys significant powers to revert resources and congressional appropriations simply by declaring a national emergency—which is often undefined and determined solely by the Executive. And although emergency powers are commonly viewed as a temporary and unforeseen instance, several emergency declarations have lasted for decades and history is ripe with instances where presidents have used emergency powers to bypass Congress and enact preferred policies.

This paper introduces several important steps Congress has taken to reassert some of its vital institutional powers. It begins by discussing recent steps Congress has taken to highlight why it must reassert a greater role in emergency declarations and foreign affairs. Next, it discusses several avenues Congress can take to reassert a louder voice in how the Executive dictates foreign policy, defense spending and the uses (and potential abuses) of its emergency powers. Finally, it identifies some legislative solutions, all of which have garnered recent bipartisan support.