By May 7, 2018•
In the near future, Congress will debate a new Authorization for Use of Military Force (AUMF). I use the word “debate” lightly. So far, no hearings have been scheduled, and no testimony is likely to be heard unless something changes. That’s a shame, because this is a serious matter, and this is a deeply flawed AUMF.
For some time now, Congress has abdicated its responsibility to declare war. The status quo is that we are at war anywhere and anytime the president says so.
So Congress—in a very Congress way of doing things—has a “solution.” Instead of reclaiming its constitutional authority, it instead intends to codify the unacceptable, unconstitutional status quo.
It is clear upon reading the AUMF, put forward by Senators Tim Kaine and Bob Corker, that it gives nearly unlimited power to this or any other president to be at war whenever he or she wants, with minimal justification and no prior specific authority.
That isn’t an AUMF. That isn’t Congress reclaiming its constitutional duties. That’s a complete rewriting of the role of the executive and of the constitutional separation of powers.
The new Kaine/Corker AUMF declares war on at least the following places and people: the Taliban, al-Qaeda in the Arabian Peninsula, ISIS anywhere, al-Shabaab in Somalia and elsewhere, al-Qaeda in Syria, al-Nusra in Syria, the Haqqani network in Pakistan and Afghanistan, al-Qaeda in the Islamic Maghreb, in Niger, Algeria, Libya, and Nigeria, and associated forces (as defined by the president) around the globe.
That is simply breathtaking. Previous AUMFs have never included “associated forces,” and with good reason. Yet the Kaine/Corker AUMF not only codifies military action against those associated forces, but by conservative estimates authorizes war in over 20 nations.
Should Congress declare war? Absolutely. Are there places we will need to be at war? Yes. Should we be having this debate at this time? Yes, we should. But we must have a full debate, with all sides considered, and with the constitutional power of every branch of government clearly in mind.
It is indisputably clear that the authority given to the executive under the AUMF passed after 9/11 has become too broad and needs updating. But this Kaine/Corker AUMF is not the answer. Simply put, it provides even more expansive war-making authority to the executive branch than the status quo.
If this AUMF is passed, Congress will have chosen to make itself irrelevant on the issue of war.
Currently, use of force without congressional authority is limited by the War Powers Act to national emergency or imminent attack. No more, under this AUMF.
Kaine/Corker would forever allow the executive unlimited latitude in determining war, and would leave Congress debating such action after forces have already been committed.
Under this bill, Congress could only disapprove of war, turning the Constitution on its head. Even worse, any resolution of disapproval could be vetoed, meaning two thirds of Congress would need to disapprove of a war, rather than a majority to approve of one. That’s a huge, unwise, and unconstitutional change.
The Founders left the power to make war in the legislature on purpose and with good reason. They recognized that the executive branch is most prone to war. The Kaine/Corker AUMF would completely abdicate Congress’s power under Article I.
Handing war-making power from Congress to the executive branch is not an exercise in congressional power. It is the final and full abandonment of that power. It is wrong, it is unconstitutional, and it should be stopped.
Rand Paul is the junior U.S. senator from Kentucky and a Republican.