Congressional Undersight

Author

Casey Burgat
Former Associate Fellow

Key Points

Instead of providing an independent check on the president’s military authorities through oversight, congressional committees are so starved for resources that they have become dependent upon the information provided by the very agencies they are expected to oversee.

Funding levels for the four House committees involved in foreign and military affairs has remained relatively flat since 2001 while funding levels for the Departments of Defense and State have increased over 60 percent during the same period.

To regain its constitutional war power authorities and provide a vital check on presidential decision-making Congress must find the political will to reinvest in its own internal resources, especially at the committee level.

Press Release

War Powers: A Battle for Control Among the Executive and the Legislature

Introduction

Despite the president’s constitutional role as Commander-in-Chief of the armed forces, Article I, Section 8 of the Constitution places the authority “to declare War” squarely within the legislative branch. This “paradoxical mix of clearly defined war powers for Congress and implied prerogatives for the president” has resulted in overlapping war privileges and regular conflict between the two branches, particularly in recent decades.

Since America’s founding, Congress has formally executed its war power 11 times, each at the president’s explicit request, and most recently by a unanimous vote in 1942, which declared war against Romania during World War II. But, of course, the United States has been involved in a number of military conflicts—most notably Vietnam, Korea and Iraq—since last declaring war, and this signals a shift in how presidents view and use their implied war powers. Instead of seeking formal congressional war declarations prior to taking military action, modern-era presidents have regularly sidestepped Congress’s right to declare war and have committed U.S. troops across the globe.

In the 1970s, Congress attempted to regain their role as a check against the president’s unilateral war- making power. Fearing their constitutional authority had been usurped by successive presidents’ unilateral military actions, Congress passed the War Powers Resolution in 1973 over President Nixon’s veto.3 The act aimed to give the president some discretion in how to respond to attacks or potential military threats, while simultaneously itemizing the legislature’s rightful role in authorizing war or the use of military force.

Despite its best intentions, the War Powers Resolution has had scant effect on the president’s military decision-making and the trend of president-led military actions continues to the present day largely through Congress-passed Authorizations for the Use of Military Force (AMUFs). Although originally intended to be used for narrow executions of military force, more recently, AUMFs have been used to grant presidents wide authority to carry out military operations from Southeast Asia to Lebanon—with limited congressional involvement. The most recent approved AUMFs came in response to the Sept. 11, 2011 terrorist attacks. The first was an authorization that granted President Bush authority “to use all necessary and appropriate force” against those responsible who planned, coordinated or carried out the attacks. The second was passed the following year and extended President Bush’s military authority to protect the United States from national security threats posed by Iraq. Importantly, the Iraq AUMF does not include an automatic termination clause, which leaves the authorization of force valid until repealed (and troops on the ground under its authority).

And, although Congress has not passed any additional AUMFs in the intervening 17 years, Presidents Bush, Obama and Trump have claimed legal authority as Commander-in-Chief to extend military operations to Afghanistan, Libya and Syria under the pretext of protecting U.S. national interests, all without receiving formal congressional approval in the form of declarations of war or an AUMF. These actions have further removed Congress from its proper role in decisions to commit U.S. troops abroad, and granted the president even broader authority to engage militarily even in locations where specific authorizations were not approved.

But despite the weightiness of deciding whether to declare war or passing an authorization of military force, either path is only the first of Congress’s obligations when it comes to foreign affairs and military action. Once operations begin, Congress becomes constitutionally responsible for conducting oversight of the executive branch, its military decision-making and its missions. Effective oversight ensures that Congress remains informed and involved enough not only to provide a prospective check on the president’s authority to commit U.S. troops, but also to make knowledgeable choices regarding appropriations levels that ultimately fund the military and its missions.

Currently, however, Congress’s oversight capacity is alarmingly lacking. The legislative branch simply does not have the levels of staff resources, funding or expertise to conduct effective oversight of the executive branch, including—and perhaps even especially—on matters of foreign affairs, intelligence and national security. Congressional committees are supremely overmatched by the resources of the executive agencies they are tasked with overseeing, and as a result, they cannot reasonably keep up with the decisions, plans and results produced by the sprawling military bureaucracy. This dynamic is compounded by the reality that the president enjoys near unilateral authority over military and intelligence operations, ultimately leaving Congress with little insight into the day-to-day operations of the people, programs and agencies they are expected to oversee and fund. Instead of providing an independent check on the president’s military authorities through oversight, such a lack of capacity has rendered Congress dependent upon the information provided by the very agencies they monitor.

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