National Security Powers Act of 2021

A Bipartisan Bill to Restore Constitutional War Powers

2/28/22
from CATO Institute,
Winter, 2022:

It would pain a lot of presidents to hear them described as a “limited organ of the national will.” But it shows that the Founders believed that there was one branch where the great public debates were supposed to happen. The big decisions, especially decisions about national security and foreign entanglements, needed to happen in Congress.

In other national security matters beyond formal war-making in those early years, presidents and Congresses also respected this balance. Take the question of alliances. In our early years, alliances were entered into mostly through formal treaties, again requiring congressional consent. When it comes to our alliance structure, I would argue that presidents today rarely enter into treaties because they have found other ways to cement alliances that don’t necessitate coming to Congress.

The pace of U.S. military activity today is fairly breathtaking. Presidents over the past 20 to 30 years have used a few methods to escape from Madison’s requirement that war be declared by the people’s branch of government. And these methods are becoming more frequent and more nuanced.

First, presidents often will decide that the military actions they’ve ordered do not constitute war.

Second, presidents often declare that the circumstances are so exigent that the president cannot come to Congress in time.

And lastly, presidents now often decide that the proposed action is covered by an existing war authorization.

This brings us to the National Security Powers Act of 2021, which Sen. Mike Lee (R-UT), Sen. Bernie Sanders (I-VT), and I introduced. Our belief is that this piece of legislation can reset this balance. On war-making, first and foremost, it makes explicit what I believe to be implicit in the construction of the war-making power in the Constitution: if the president does not have authorization for a particular military activity, then he cannot use public funds to carry out that activity. I would argue that both the Constitution and the War Powers Act already stipulate that, but they’ve been ignored.

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