Congress is wading into a messy fight over President Biden’s war powers after years of ceding authority to the White House.
The legislative effort is blurring political lines by testing the balance of power between two branches of government and creating strange bedfellows, with hawkish Republicans who disagree with Biden’s policies wary of attempts to limit presidential authority on the issue.
Proponents of change are hoping Biden’s ascendancy, after serving for decades in Congress, and shifts in public opinion in the decades since earlier military authorizations by lawmakers will provide a boost of momentum after years of stalemate.
“I think we’re overdue. … We are so far past the scope of what any member serving in ’01 or ’02 imagined,” said Sen. Chris Coons (D-Del.), who serves in Biden’s old Senate seat. “I think it’s important that we take this up, debate it and pass something.”
Congress is looking at three previous authorizations for the use of military force (AUMFs): the 1991 measure for the Gulf War, the 2001 bill passed days after the 9/11 terrorist attacks and 2002 legislation passed for the Iraq War.
The biggest challenge, lawmakers acknowledge, will be how to handle the 2001 authorization. It was approved by Congress just days after Sept. 11, 2001, to go after terrorist groups behind the attack. But it’s since been stretched to cover military operations in 19 countries, including against groups that didn’t even exist on 9/11.
“What the replacement looks like, what are the contours of it, that’s going to be the tricky part of that and the more difficult part,” said Sen. Bob Menendez (D-N.J.), the chairman of Senate Foreign Relations Committee.
Sen. Todd Young (R-Ind.), a member of the panel, agreed that the 2001 AUMF should be “rewritten” but that it would be hard to do.
“The administration seems open to revisiting some of these things, but admittedly the ’01 AUMF is going to be much more challenging than ditching the ’02 and the ’91,” he said.
The Biden administration has signaled it’s open to revamping the military authorizations, sparking optimism among those on Capitol Hill who want Congress to reassert itself on foreign policy after increasingly yielding to the executive branch in recent decades.
White House press secretary Jen Psaki said in a statement that the administration was “committed to working with Congress to ensure that the authorizations for the use of military force currently on the books are replaced with a narrow and specific framework.”
Menendez and Sen. Tim Kaine (D-Va.) say they are in early discussions with administration officials about rewriting the 2001 authorization. Kaine, who noted that he had already talked with national security adviser Jake Sullivan, predicted that they would sit down after the current two-week recess to talk about what the administration’s red lines might be.
“The first thing I’m trying to do is talk to the White House about any ‘thou shalts’ or ‘thou shalt nots,’” he said. “We’re going to have to find, definitely, an accord. Because there’s different points of view.”
But trying to repeal the 2001 authorization could spark pushback from both sides — with the executive branch and Republicans wary of taking potential military options off the table and Democrats wanting new restrictions.
Sen. Ben Cardin (D-Md.) said the 2001 authorization has been “misused” and was no longer “functional.”
“You’re going to have to get … the president to take on White House counsel to do what’s right because White House counsel will tell a president, ‘Why do you want to limit your options?’” he said.
Progressives view a sunset on the 2001 rewrite, where it would automatically expire unless Congress acted, as a must-have. They also want stricter guardrails on where the authorization can be used and what terrorist groups it should cover.
But reining in the 2001 bill could be anathema to some Republicans.
Sen. James Inhofe (Okla.), the top Republican on the Senate Armed Services Committee, questioned the need for a debate, saying, “We don’t need to do that.” And Sen. Lindsey Graham (R-S.C.) told The Washington Post that he thought the debate about previous authorizations could “incentivize the rise of terrorism.”
Democrats acknowledge they are likely to get pushback from Republicans but are hoping that they’ll be able to pick up at least 10 GOP votes in the Senate on a 2001 rewrite.
Cardin said there would be “significant Republican opposition” but that he thought there could be support for a “reasonable” authorization.
“I think we’re now so many years into this war that the American public, I think, is reflecting a view that’s having an impact on the traditional views of some of the members of the Senate,” he said about the war on terror.
In a sign of shifting sentiments, Rep. Tom Cole (R-Okla.) said he was “coming around” to the idea of putting a hard expiration date on any new authorization.
“I think there’s got to be some way where Congress renews these things,” he told WBUR’s “On Point.”
Sen. Mike Rounds (R-S.D.) added that he thought it was “appropriate to review” the previous authorizations, even though he wasn’t sure if he would support the end result.
“I think time has a lot to do with it. … We’re getting past the point where the original request, and the reason for the original request, needs to be revisited. … I’m not sure after we revisit, I would agree” to changes, he said.
To help work their way up to a fight over the 2001 authorization, lawmakers are setting their sights on an easier, but still significant target: repealing a 1991 authorization for the Gulf War and a 2002 authorization for the Iraq War.
The House Foreign Affairs Committee voted late last week to repeal the 2002 authorization, with two Republicans joining Democrats on the panel.
In the Senate, a bipartisan group spearheaded by Kaine has introduced legislation to repeal the 1991 and 2002 authorizations. Menendez indicated that he intends to take them up “sooner rather than later” but declined to give a specific timeline.
“We’re going to look at two of the previous AUMFs that I think there might be more common agreement that can be repealed,” he said.
The House passed a repeal of the 2002 AUMF in the past two years, but the bills went nowhere in the GOP-controlled Senate. Democrats already have the support of four GOP senators, meaning they only need six more to overcome a filibuster.
“My strong suspicion is that we’ll find at least 10. … My hope would be significantly more in number than that,” Young said about GOP support for repealing the 1991 and 2002 authorizations.
Murphy added the efforts to repeal the 2002 authorization was Congress getting its “feet wet when it comes to dealing with AUMFs.”
Biden’s ascendancy to the presidency sparked new hope that Congress and the White House could finally tackle the perennial debate about what to do about the decades old authorizations, given Biden’s long tenure in the Senate, where he served as chairman of Foreign Relations Committee for years.
Coons, a close ally, predicted Biden would be a president “most likely to welcome congressional action in this area.”
But there are complications.
Biden’s pledge to have all 2,500 U.S. troops out of Afghanistan is already facing skepticism. The U.S. withdrawal is supposed to be contingent on the Taliban meeting certain benchmarks including breaking with al Qaeda, but top military officials say Taliban leaders are not adhering to the agreement.
And there have been broader tensions between the Democratic-controlled Congress on military authorization after Biden launched a strike in Syria against Iran-aligned militias last month. The administration rankled lawmakers who felt they weren’t properly notified, and Democrats signaled after a briefing last week that they still disagree about the administration’s argument that the strike fell under Biden’s Article 2 powers.
“I am still in search of more answers,” Menendez said, calling it an “ongoing debate” between Congress and the White House.
Murphy added that the administration has “broader definition of their legal authority,” signaling that it was a discussion lawmakers needed to tackle along with the military authorizations.
“We have to redo the AUMFs. … The new problem is that administrations aren’t looking to the AUMFs but just continuing to expand their Article 2 authority. I think the disagreement here is whether they have the Article Two authority,” Murphy said.
“I think we should solve the AUMF problem,” he added, “but that doesn’t address the broadening jurisdiction.”