Cleaning Out the War Powers Closet

Congress has decided to begin cleaning out its “war powers” closet after years of accumulating Authorizations for the Use of Military Force (AUMF) whose expiration dates seem long past due. In mid-June, the House voted 268-161 in favor of repealing the 2002 AUMF that authorized then-President George W. Bush “to defend the national security of the United States against the continuing threat posed by Iraq.”

Having removed Saddam Hussein from power and declared an end to combat operations in Iraq a decade ago, repeal seems to be a reasonable step for Congress to take. And it has considerable bipartisan support: 49 Republican House members voted for the measure. Even the relatively hawkish Rep. Mike Gallagher (R-Wisconsin) says, “The 2002 AUMF is no longer relevant.” Indeed, Gallagher, along with Rep. Abigail Spanberger (D-Virginia) and Rep. Jared Golden (D-Maine), have proposed repealing the First Gulf War AUMF (1991) and the Middle East Resolution of 1957—a resolution that stipulated that the president had the discretion to use American military force to assist a nation if it requested assistance to fend off “armed aggression from any country controlled by international communism.” 

As for the Senate, in early March, Sens. Tim Kaine (D-Virginia) and Todd Young (R-Indiana) introduced a bill to end both the 1991 and 2001 AUMFs. In the wake of the recent House vote, Senate Majority Leader Chuck Schumer indicated he would make every effort to bring the lower chamber’s measure to the Senate floor as well. Not to be outdone by Gallagher, Kaine, and company, Sens. Mike Lee (R-Utah), Bernie Sanders (I-Vermont) and Chris Murphy (D-Connecticut) are proposing a wide-ranging bill to repeal not only the 1957 joint resolution and the two Iraq AUMFs, but also the 2001 AUMF that authorized the president “to use all necessary and appropriate force” against the terrorists involved in the “attacks that occurred on September 11, 2001” or who had “harbored” them. 

Given the crowded legislative agenda, in the near term, it’s likely that only the 2002 AUMF will be voted on. But will its repeal matter? Well, yes and no. “Yes” for the simple reason that having a law on the books that no longer applies is evidence of a disrespect for the idea of law itself. Laws should be taken seriously, but they won’t be if they obviously no longer make sense or if their continued use is dependent on tortured interpretations. In 2017, for example, then-Secretary of Defense James Mattis argued that repealing the 2002 AUMF “could call into question the President’s authority to use military force to assist the Government of Iraq both in the fight against ISIS and in stabilizing Iraq following the destruction of ISIS’s so-called caliphate.” Turning an AUMF whose object is dealing with the threat posed by Iraq into an AUMF to defend Iraq is precisely the kind of legal reasoning that gives a bad name to both “legal” and “reasoning.”

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