Need for Stronger Congressional Oversight in War Powers

Over the last few months, the public has grown accustomed to seeing members of Congress question witnesses in impeachment hearings. While impeachment hearings rarely occur, Congressional hearings happen every week. The topics of these hearings range from increase in youth usage of electronic cigarettes^[1] to the Special Inspector General for Afghanistan Reconstruction’s Lessons Learned project.^[2] While the Constitution does not contain explicit language authorizing Congress to conduct oversight, it implies the practice through investing “all legislative power”^[3] in the legislative branch. In order to legislate most effectively, Congress must have the authority to gather information. Congress also draws its oversight authority from the “power of the purse.” Under the Constitution, only Congress may appropriate money, and a “regular statement and account of the receipts and expenditures of all public money shall be published from time to time.”^[4] In order to assure that the government spends public money appropriately, Congress must have the authority to investigate how money has been spent in the past. The Founding Fathers organized the Constitution very specifically, and they intended for the legislative branch to hold the most power. The exercise of Congressional authority helps Congress exercise the power granted to it by the Constitution.

Over the past several decades, Congress has greatly expanded the Executive’s war power, despite the Constitution granting the most power to the legislative branch. A perfect example of this is the expansion of Executive war powers in the last fifty years. Under the Constitution, Congress has the power to declare war,^[5] while the President is the “Commander in Chief of the Army and Navy of the United States.”^[6] The United States last officially declared war in the context of World War II. Since then, Presidents used other justifications for engaging militarily around the world.^[7] After the Vietnam War, Congress passed the War Powers Resolution to rein in the President’s ability to enter military engagements without Congressional approval.^[8]  The War Powers Resolution requires that a President notify Congress when sending troops into combat situations and gives Congress the discretion to decide when to end  the engagement.^[9] However, since the passage of this resolution, presidents have rejected these requirements, claiming they are unconstitutional. The power of the Executive Branch to engage in war also grew as a result of the 2002 Authorization of the Use of Military Force.^[10] Under this piece of legislation, Congress authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”^[11] This broad grant of authority took away Congress’ power in conducting war and vested a large amount of war power in the executive.

In recent weeks, Congress has taken steps to reclaim some of its oversight power. For example, both the House and the Senate passed a resolution that would limit the president’s ability to attack Iran without Congressional approval.^[12] As stated above, Congress engages in oversight in order to fulfill its legislative duty and power of the purse. By passing legislation to limit the president’s ability to engage militarily with Iran without Congressional approval, Congress reasserts its authority to oversee executive action. This legislation would require “the President to cease hostilities targeting Iran within 30 days, unless explicitly approved by Congress.”^[13] This time frame would allow Congress to assess the necessity of further legislation approving the military engagement or to reevaluate appropriations and funding for military engagements. The time has come for Congress to reassert its oversight authority, and taking steps like passing the recent legislation limiting the President’s war powers does just that.

^[1] Examining the Respond to Lung Illness and Rising Youth Electronic Cigarette Use: Hearing Before the Comm. On Health, Educ., Labor & Pensions, 116th Cong. (2019) (statements of Mitch Zeller, Director, Center for Tobacco Products, US Food and Drug Administration, and Amy Schuchat, MD, Principle Deputy Director, Center for Disease Control and Prevention), https://www.help.senate.gov/hearings/examining-the-response-to-lung-illnesses-and-rising-youth-electronic-cigarette-use (last visited Apr. 8, 2020).

^[2] U.S. Lessons Learned in Afghanistan: Hearing Before the H. Comm. On Foreign Affairs, 116th Cong. (2020) (statement of John F. Sopko, Special Inspector General for Afghanistan Reconstruction), https://foreignaffairs.house.gov/hearings?ID=BE1985B3-B6CE-478B-969C-CF365823B2B0 (last visited Apr. 8, 2020).

^[3] U.S. Const. art. I § 1.

^[4] U.S. Const. art. 1, § 9, cl. 7.

^[5] U.S. Const. art. 1, § 8, cl. 11.

^[6] U.S. Const. art. 2, § 2, cl. 1.

^[7] Nixon and the War Powers Resolution, Bill of Rights Institute https://billofrightsinstitute.org/educate/educator-resources/lessons-plans/presidents-constitution/war-powers-resolution/. President Truman called U.S. military involvement in Korea “police action,” President Kennedy said he sent “military advisors” to Vietnam, and President Johnson used the Gulf of Tonkin Resolution passed by Congress to escalate the engagement in Vietnam. Id.

^[8] Id.

^[9] 50 U.S.C.A. § 1541 (West 2019).

^[10] Authorization for the Use of Military Force, PL 107-40, September 18, 2001, 115 Stat 224.

^[11] Id.

^[12] Andrew Desiderio and Marianne Levine, Senate Votes to Limit Trump’s Military Authority Against Iran, Politico (Feb. 13, 2020, 10:01 AM), https://www.politico.com/news/2020/02/13/cotton-amendment-war-powers-bill-114815.

^[13] Id.