Experts Agree: Corker-Kaine AUMF Allows Congress to “Completely Abdicate” its Constitutional Duty

By Daniel Bergmann

On Wednesday, during a Senate Homeland Security Subcommittee hearing led by Senator Rand Paul (R-KY), senators from both sides of the aisle called for Congress to reassert its constitutional duty to debate and authorize the use of force. Along with expert witnesses, they warned that the Authorization for Use of Military Force (AUMF) proposed by Senators Bob Corker (R-TN) and Tim Kaine (D-VA) would not only codify the untenable status quo, but would, in fact, cede Congress’s war-making authority to the president, inverting the Constitution’s separation of powers.

Following the deadly events of September 11, 2001, Congress passed the 2001 AUMF, which enabled the executive branch to wage war against those responsible for the attacks. One year later, Congress passed a second AUMF, this time to authorize war against Saddam Hussein’s regime in Iraq. Over the following sixteen years, three different presidents – both Republican and Democrat – have used these AUMFs to try to justify their use of war powers against an array of terrorist organizations around the world, many of which did not even exist at the time of the 9/11 attacks.

Senator Paul concluded that Congress had “completely abdicated” its constitutional duty to review, debate, and authorize the use of military force. Senator Jeff Merkley (D-OR) concurred, noting that the 2001 AUMF had been “stretched beyond recognition” and that “three esteemed experts have just clarified that [the United States] does not have the constitutional authority” to conduct military operations in Syria. Senator Mike Lee (R-UT) called the current state of affairs, where the executive branch has unilaterally expanded the scope of AUMFs, “scary,” and Senator Bernie Sanders (I-VT) warned that the consequences of Congress neglecting its constitutional duty were “dire and horrific” for both America and the rest of the world.

One of the witnesses, Professor Jonathan Turley, agreed with Senator Paul’s assessment, stating that the existing AUMFs and the proposed Corker-Kaine replacement “put war-making on autopilot.” Another witness, Fox News legal contributor Judge Andrew Napolitano, concurred, calling the proposed Corker-Kaine AUMF “profoundly unconstitutional.” Napolitano argued that the proposal would cede to the executive branch Congress’s constitutional duty to declare war by requiring a Congressional supermajority—a veto-proof two-thirds of both the House and Senate—to stop the president from unilaterally expanding the war to new groups and new countries. Napolitano went on to criticize both the existing AUMFs and the proposed Corker-Kaine replacement as “putting a loaded gun in the desk drawer of the president, ready for him to take it out and shoot it whenever he wants.”

Chris Anders of the ACLU, another witness, urged senators to make opposing the Corker-Kaine AUMF “a top priority.” Citing the imminent danger that this bill would create, Anders explained that it would not only codify the problematic status quo, but would allow the president to have “unilateral authority to add…[even] the United States itself to the list of countries where Congress is authorizing war….In contrast to the Corker-Kaine AUMF, Senator Merkley has introduced an AUMF that reflects a deep awareness of both the framework of the Constitution and the gravity of the decision to go to war.”

To keep wartime powers where the Constitution says they belong and prevent Congress from ceding its authority to the executive branch, any new AUMF should satisfy the following criteria, which have bipartisan support:

  • Clearly define the mission objective and the enemy
  • Include robust reporting and transparency requirements to keep both Congress and the public informed
  • Require compliance with U.S. obligations under international law
  • To prevent confusion or overlap, clarify that the authorization is the sole source of statutory authority to use force against ISIS
  • Set a sunset date for both the new AUMF and for the 2001 AUMF
  • Repeal the 2002 AUMF

Published on June 8, 2018


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