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Republican Tom Cole (left) and Democrat Jim McGovern have a shared interest in congressional war powers.
Why this could, and should, be the year to recalibrate shared war making authority
Marcum is a fellow at the R Street Institute, a center-right think tank. Deaton is on the communications staff of Protect Democracy, a nonprofit working "to prevent our democracy from declining into a more authoritarian form of government."
Thirteen months ago, we cheerfully reported on a little-covered House Rules Committee hearing that examined ways Congress could "reassert national security authorities it has long lost or delegated to the executive branch." We documented the "bipartisan goodwill" in the room and the seeming "genuine energy for reform."
Despite these good feelings, though, we warned that past optimism has too often been followed by inaction, and so it was up to Congress "to continue this important discussion."
The good news: A year later, we're still optimistic — in fact, even more so than before — thanks to two House committees and a growing bipartisan band of lawmakers interested in restoring Congress' institutional powers.
One day last month, both the Rules Committee and the Foreign Affairs Committee held hearings reexamining Congress' war powers and the broad authorizations to use military power given to previous presidents but still in effect — in one case, almost two decades after being granted.
Before the Rules hearing, Democratic Chairman Jim McGovern of Massachusetts and ranking Republican Tom Cole of Oklahoma released a joint statement explaining why the issue enjoys bipartisan interest. Their committee also highlighted the growing bipartisan consensus that the legislative branch needs to apply greater scrutiny on the executive branch's growing powers and lack of consultation with Congress on its numerous uses of military force.
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During the Foreign Affairs hearing, ranking Republican Michael McCaul of Texas, for instance, explained that "wars should not be on autopilot" and "Congress owes our troops a clear commitment to the missions we are asking them to undertake." Democratic Chairman Gregory Meeks of New York similarly observed that an outdated congressional authorization for force "opens the door for future presidents to use force without working through Congress."
After both hearings, the chairmen released a joint statement summarizing the growing consensus that "executive authority on matters of war and peace has gone unchecked for many years" and declaring that Congress has a joint responsibility "when we send our uniformed men and women into harm's way." The chairmen concluded that these hearings would guide Congress' next steps to make "reform a reality."
One immediate reform is to repeal outdated and unnecessary authorizations for the use of military force. The most criticized is the 2002 measure, written to allow President George W. Bush to topple Saddam Hussein's regime, authorizing the president to "defend the national security of the United States against the continuing threat posed by Iraq."
But much has changed in the subsequent 19 years, of course. To begin, the United States is no longer at war with Iraq. Indeed, in the view of the State Department, Iraq is now "a key partner" in the Middle East. Nevertheless, the broad language has been stretched by subsequent presidents of both parties, Democrat Barack Obama and Republican Donald Trump, to support military actions unrelated to ending Saddam Hussein's rule. And finally, as Jack Goldsmith, a high-ranking George W. Bush administration official, explained last month, the law is now "unnecessary" because "every use of force in which the 2002 AUMF was invoked could have been justified independently" — either by the 2001 authorization of force enacted after the Sept. 11 attacks or by the president's commander-in-chief constitutional powers.
Two days after the hearing, Foreign Affairs approved legislation to repeal the 2002 war authorization written by Democrat Barbara Lee of California, who cast the singular "no" vote in Congress against the 2001 use-of-force measure. The legislation enjoys seven Republican cosponsors along with its 105 Democratic backers.
Lee's legislation isn't the only bipartisan bill on this topic moving through Congress. A measure recently introduced by Democrats Abigail Spanberger of Virginia and Jared Golden of Maine, along with Republicans Mike Gallagher of Wisconsin and Peter Meijer of Michigan, would repeal not only the 2002 law but also antiquated authorizations from 1991 (which precipitated the Persian Gulf War) and 1957 (to repel communism in the Middle East). There's also a Senate measure by Democrat Tim Kaine of Virginia and Republican Todd Young of Indiana to repeal both the 2002 and 1991 authorizations.
However, it is important that the effort not stop there. "Congress must do more than withdraw old permission slips and reduce America's heavy military presence abroad," Goldsmith wrote in a New York Times op-ed last month. "It should end its long acquiescence in presidential arrogation of war power by affirmatively prohibiting unilateral uses of force except in tightly defined circumstances of actual self-defense."
In other words, AUMF reform must be partnered with fundamental war powers reform to be effective.
In 2019, a coalition of good government groups articulated key principles for additional reform.
These include the reauthorization or sunset of all AUMFs after two years, a limitation on their scope, strengthened reporting requirements, tightened definitions of relevant terms such as "hostilities" and the cut-off of funds for any violations.
During a long Senate career that included almost four years as Foreign Relations Committee chairman, President Biden was a champion of stronger war powers for the legislative branch and weaker ones for the executive. But, historically, Congress hasn't been willing to take up this cause, while presidents of all ideologies have fought to protect their own expanding power.
Between the recent and widespread action in Congress and Biden's record as a senator, there finally may be the sort of cooperative spirit in Washington necessary to make war powers reform reality. As McGovern told his House Rules hearing, sometimes it is possible to catch "lightning in a bottle" — times such as this one.
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Soren Dayton and Anthony Marcum arugue, "Members of the Rules Committee have taken the important first step of setting the model for other members and committees."
Some good news from the Hill: Congress is standing up for itself, together
Dayton is a former House GOP aide and a policy advocate at Protect Democracy, a nonprofit that works "to prevent our democracy from declining into a more authoritarian form of government." Marcum is a governance fellow at the R Street Institute, a pro-free-market public policy research organization.
It is rare these days that people have happy news to share in the nation's capital. But we are here to do just that.
Last week, the House Rules Committee held an extraordinary hearing on ways Congress could reassert authorities it has long ceded to the executive branch. It was extraordinary for its form, its substance and its energy. (And yes, we're still talking about a Rules Committee hearing.)
First, the form. The hearing used principles that were first developed by the Select Committee on the Modernization of Congress. Established just last year, part of the purpose of this rarely discussed Modernization Committee is to "help Congress help itself" with new processes that make it more effective and less polarized.
Last week, the Rules Committee practiced what the Modernization Committee has recently preached. And the result was a hearing conceived on a bipartisan basis, with witnesses picked jointly by committee staff from both parties, and with unlimited time for committee members to probe witnesses and dive more deeply into substantive and complex policy questions.
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Beyond these bipartisan successes, perhaps the most important symbolic moment of the hearing was this: Instead of turning over the gavel to another member of his majority, as is almost always done, when Democratic Chairman Jim McGovern of Massachusetts had to leave the room he handed it to the panel's top Republican, Tom Cole of Oklahoma.
To understand the importance of this small but significant gesture, it's important to understand that the Rules Committee's members are appointed by the Speaker with an eye toward making sure the majority always wins. Almost all controversial legislation passes through Rules, which sets the procedures for debating and amending bills on the House floor. The Rules majority has the most lopsided majority of any committee, essentially guaranteeing the Speaker will get the ground rules she asks for.
This means most committee proceedings are entirely party-line affairs. But, last week, as Cole noted in his opening statement, the committee did not function in "usual partisan camps of 9-4" but instead came out 13-0 in favor of improving the institution of Congress.
And this leads to the substance of the hearing, focused on how Congress can reassert national security authorities it has long lost or delegated to the executive branch. In a joint statement announcing the hearing, McGovern and Cole argued that Congress for many years has been abdicating its authority to presidents over such fundamental matters as going to war, monitoring the regulatory process and controlling federal resources and powers during national emergencies. This "has happened regardless of which party controlled Congress or sat in the Oval Office," they noted, and so bipartisan diligence on Capitol Hill will be the only way to recalibrate the balance of power toward the legislative branch.
In his opening, Cole furthered this sentiment, noting that the Founders positioned Congress in Article I of the Constitution for a reason: "It was no accident that they first described the powers entrusted to Congress on behalf of the American people. Indeed, the legislative branch established in Article I remains the most closely connected to the views of our nation's citizens to this day."
The witnesses, who fell across the ideological spectrum, agreed. Testimony from professors Laura Belmonte and Matthew Spalding's provided a historical background of an ever-expanding executive branch coinciding with a legislature that has become more reluctant to use it foreign affairs powers. Professors Saikrishna Prakash and Deborah Pearlstein offered a number of possible reforms.
The hearing's bipartisan goodwill and institutional focus were only surpassed by the committee's genuine energy for reform. In addition to McGovern and Cole, most of the committee attended the entire hearing. This is a rarity in Congress, let alone for a hearing that went on for nearly four hours.
Members had also clearly done their homework. Two members of both the Modernization and Rules committees, Democrat Mary Scanlon of Pennsylvania and Republican Rob Woodall of Georgia, asked detailed questions about Congress' structural role. Republican Debbie Lesko of Arizona emphasized deep thinking about these issues happening across the political spectrum and referred to a recent Republican Study Committee report that included many recommendations about taking back power it has long abdicated. Democrat Donna Shalala of Florida, who was Health and Human Services secretary in the Clinton administration, explained that executive branch officials often "celebrate" this abdication and try to "drive a car through" broadly (or badly) drafted legislation.
Optimism for congressional reform, however, is always marred by subsequent inaction. Members of the Rules Committee have taken the important first step of setting the model for other members and committees. From here, it is up to the public — and the people's branch of government — to continue this important discussion.
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"For Trump, impeachment is likely, removal is dubious, and a re-election campaign is all but certain," write Kristen Nyman and Anthony Marcum.
Three impeachment scenarios dangerous for democracy
Nyman is a government affairs specialist and Marcum is a governance fellow at the R Street Institute, a nonpartisan and pro-free-market public policy research organization.
Update: President Trump was impeached by the House of Representatives on Dec. 18.
Imagine the following: Early next year the House of Representatives impeaches President Trump. One of these three scenarios is likely to follow.
Behind curtain number one, the president is acquitted at the subsequent trial in the Senate. He then takes the stage in Charlotte, N.C., to accept the Republican nomination for president in 2020.
Behind curtain number two, the Senate convicts the president and he is removed from office — yet he still takes the stage in Charlotte to accept the 2020 nomination.
Behind curtain number three, the president, having been impeached by the House, resigns from office. Nonetheless, he still makes his way to Charlotte to accept the 2020 nomination.
Each scenario is both possible and constitutional. Worse still, they are nationally unprecedented and each has the potential to severely damage our political institutions.
Because Richard Nixon resigned in 1974 before an impeachment vote by the full House, we have only two presidential impeachments to draw on for our analysis: those of Andrew Johnson and Bill Clinton. As in these cases, an impeachment vote is the most likely outcome. A simple majority in the House suffices to impeach a sitting president. Today, Democrats hold a majority of the seats. More than 220 of them already support taking action on impeachment.
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Once a president is impeached he faces the possibility of removal from office. Removal of a sitting president entails a higher burden than does impeachment: It requires a trial before the Senate, presided over by the chief justice of the United States. A two-thirds majority is required for conviction on each count brought by the House. Being found guilty on any single charge means Trump's removal from office. According to current rules and Senate Majority Leader Mitch McConnell's own words, the Senate would be compelled to hold a trial. Yet given the Republican majority in the Senate, it is likely that — just as in past instances — the vote fails to reach that supermajority threshold.
If that happens, the Constitution permits a second Senate sanction: "disqualification to hold and enjoy any office of honor, trust or profit under the United States." In other words, a vote for disqualification would forbid the president from running for federal office ever again.
And yet, barring a Senate vote in favor of this sanction, the president's removal from his current office is not tied to disqualification from holding future federal office. As Ohio State law professor Edward Foley observes, "The Senate's practice in impeachment cases has been to hold separate votes on removal and disqualification." Indeed, in our nation's history, there have been only eight successful impeachment convictions, and of those, only three of the individuals impeached were prohibited from holding future office.
In other words, though the likelihood of Trump being removed from office is slim, unless the Senate subsequently votes to disqualify him from holding future office he could run for president again in 2020. This would be an unparalleled event in American history and open the door to many uncomfortable situations.
The president's unprecedented post-impeachment campaign would face off against an unprecedented challenger. Polling indicates the likely Democratic nominee will either be a senator who could cast a vote to remove Trump from office or the individual whose family was central to the Ukraine machinations that sparked the initial impeachment inquiry. In fact, eight of the potential Democratic nominees are sitting members of Congress who would be involved in the impeachment or removal process — a scenario that seems more appropriate as a chapter out of Hobbes' "Leviathan" than legitimate political procedure.
Yet it could very well happen. After all, Trump's quiet retirement is unlikely, and the president has shown an eagerness to reinstate a full political campaign. Both the political and legal realities support his fervor.
The political groundwork for Trump's 2020 campaign, too, has already been laid. Even if he were to lose the support of voters, the Republican National Committee would have no time to present a viable contender before the primary season, which begins in four short months.
Another discouraging note: If Trump is impeached, it will mean two out of the last four American presidents have been sanctioned in this manner — both in the last 21 years. Before Nixon and Watergate in the 1970s, 11 decades elapsed between presidential impeachment attempts. It is not as though more than six scores of American history were devoid of scandal — the Grant Whiskey Ring and Teapot Dome representing just the tip of the abuse-of-executive-power iceberg.
As the partisan divide deepens and impeachment proceedings intensify, the courts may very well need to adjudicate new or unforeseen constitutional questions. On these issues, if the Supreme Court is thrown into the fray, it risks dangerously tying the judiciary to the politics of impeachment and increasing the public's growing cynicism toward the third branch.
For Trump, impeachment is likely, removal is dubious, and a re-election campaign is all but certain. This domino effect of unprecedented circumstances poses uncomfortable questions that challenge our democratic norms and could fatally weaken our longstanding institutions.