Congress Taking Back Power

By Daniel DePetris

The separation of powers is one of the instrumental components of American democracy.  The President of the United States, as the saying goes, isn’t a king that can do whatever he wants regardless of the concerns of the other branches of the government.  The Separation of powers under the U.S. Constitution provides just as much power to the legislative branch — powers that members of Congress has regrettably been too politically reserved to use to its full effect. 

The system of checks and balances, however is only as good as the balance between the White House and Congress.  Over the past fifteen years, the balance has been out of whack; while the concept of an “imperial presidency” sounds overly dramatic, the White House has in fact been steadily and effectively chipping away at the prerogatives of Congress to acquire more power for itself.  If the post-Watergate and Vietnam period was a perfect opportunity for Congress to take back some of the foreign policy reigns (the War Powers Act was passed in 1973) , the September 11 attacks and the subsequent war on terrorism was a godsend for White House lawyers who firmly believed in an all-powerful executive during wartime.  

They have succeeded with flying colors, often with the assistance of a Congress that has been more than willing to shy away from any national security decision-making that is anywhere near controversial.  

For instance, when lawmakers choose to fall back on an outdated, 15-year old war authorization against Al-Qaeda as the statutory basis to fight the Islamic State — a terrorist organization that didn’t even exist at the time the resolution was passed — Congress has also chosen to accede to the executive branch’s interpretation of how to prosecute the country’s current conflicts.  This is precisely what occurred in March 2015, when President Obama submitted a draft authorization for the use of military force applying specifically to current military operations against the Islamic State.  Instead of modifying the resolution and debating the merits, benefits, and costs of the anti-ISIL campaign in full view of the American people, congressional leadership and rank-and-file members of Congress opted to bicker from sidelines about the administration’s war strategy.  Unfortunately, despite widespread recognition that the 2001 AUMF was originally meant to approve military force against Al-Qaeda in Afghanistan, the legislative branch has been comfortable expanding that same authority across seven separate countries, two separate continents, and a variety of terrorist groups.

For those who care about the separation of powers and the power of Congress under Article 1 of the Constitution, all is not lost.  In fact, we should view with mild relief that the legislative branch is now beginning to realize how much authority they willingly gave away.  Under the 2017 defense policy bill that was just passed overwhelmingly by the House and the Senate, Congress took concrete action to get some of that power back — capping the number of professional staff that the president can hire on the National Security Council (NSC) to 200 people.    

The NSC, the inter-agency body responsible for advising the president on all matters of foreign and national security policy, has mushroomed to such an extent that it has become its very own bureaucracy.  A group that was at first established to be a lean and mean cross-agency body where multiple national security departments could streamline the process and follow the president’s orders has grown so large that staffers in the White House are increasingly dictating to officials in the Defense and State departments what they can and cannot do.  Introducing a hard cap on the NSC staff stops that growth from continuing and functions as a warning to the White House that Capitol Hill will no longer be the passive spectators yelling from the peanut gallery.  

The issue, of course, is what more Congress can do by its own accord in order to re-balance the executive-legislative relationship on U.S. foreign and national security policy.  Fortunately, members of Congress have extraordinary power at their disposal — they have just decided that it’s either politically unpopular or legislatively impossible to use it.

For starters, the Senate and House Foreign Affairs Committees need to be far more willing to craft annual State Department authorization bills and push the congressional leadership to put those bills onto the floor for a full debate and vote.  The last time Congress passed a State Department authorization bill into law was 2002, a period of time when Saddam Hussein was still Iraq’s president, Al-Qaeda was thought to be on its last legs in the mountains along the Afghan-Pakistani border, and Joe Biden was the Chairman of the Senate Foreign Relations Committee.  For whatever reason – partisan animus on Capitol Hill, a reliance on omnibus bills, or the retirement of members who spent decades on foreign policy issues — the House and Senate have permitted the State Department to operate on outdated authority not in-tune with the world’s present circumstances. 

Secondly, members of the congressional national security committees ought to take far more advantage of their power to create special select committees or special commissions on key policies that are technically or scientifically difficult for the average politician to oversee — the Iran nuclear agreement being one of the most obvious cases.  While the creation of special commissions and enhanced monitoring seem like overly bureaucratic solutions to the problem, rigorous oversight is one of the most impactful weapons that Congress can levy over the executive branch — one that introduces a degree of accountably over the White House, the Pentagon, and the State Department that would normally be lacking with the regular order of congressional hearings and classified briefings.  Carping from the sidelines, introducing symbolic pieces of legislation that have no chance in becoming law, and skewering administration officials during congressional hearings only go so far in changing policy.  Establishing congressionally mandated commissions, authorizing a deep-dive study of specific policies, and issuing recommendations to the American people and to their colleagues across the U.S. government, however, often generates the kind of political pressure that forces the executive to reform. 

History is replete with examples of how these kinds of special committees and commissions can prompt reform within the government while at the same time educating the American people.  The Church Committee brought U.S. intelligence activities domestically and internationally into the light, a series of reports that helped convince President Gerald Ford to ban assassinations of political leaders and persuaded Congress to establish the Foreign Intelligence Surveillance Court.  The 9/11 Commission, yet another entity created by Congress, brought much-needed clarity and detail to the American people about the government’s failures before the 9/11 attacks and how those attacks transpiredNot to be ignored was the the Senate Intelligence Committee’s comprehensive report on enhanced interrogation techniques — a study that shaped the news cycle for weeks — which provided a disturbing but absolutely necessary look into how the CIA conducted interrogations of suspected terrorist detainees.  The study not only gave the American people a much better understanding of the CIA’s interrogation, detention, and rendition program, but also caused such passionate that Congress eventually passed an amendment into law that would prohibit U.S. interrogators from using any interrogation techniques not included in the Army Field Manuel. 

Finally, Congress must stop avoiding its most serious duty under the U.S. Constitution — Article I, Section 8, the power to declare war or authorize the use of U.S. military force overseas. 

The last time Congress provided the president with war authority was in October 2002 against Saddam Hussein’s Iraq in the lead up to Operation Iraqi Freedom.  To state the obvious, a lot has transpired since that vote was taken, including the proliferation of terrorist groups around the world — some of which are only marginally or superficially connected to the wider Al-Qaeda organization.  The 2001 authorization for the use of military force has become a catchall for the last two administrations to fight any terrorist group that happens to pop up.  President Obama’s linking of the Islamic State as an affiliate to Al-Qaeda, and therefore covered under the 2001 AUMF, stretches credulity given the intense hatred between both organizations; the fact that Congress has largely bought into the administration’s legal reasoning, however, also affords lawmakers with the convenient justification to refrain from taking a difficult vote.  There is ultimately no better way to reaffirm congressional power on matters of war and peace than to abide by the Constitution’s declare war clause.

Whether or not this year’s defense authorization bill is the start of correcting the executive-legislative imbalance on foreign policy that has persisted for the last decade and a half is still open for debate.  But the bill is at least a good omen for the future — if Congress wants to be taken more seriously, they need to get back into the action.

Daniel DePetris is a fellow at Defense Priorities.