The Senate and House Armed Services committees unveiled the 2023 version of the NDAA this week, which still needs to be voted on. The bill is a whopping 4,408 pages of dense bureaucratic language, covering everything from pay raises for troops and arms purchases to the initiation of research and development programs for the next generation of weapons. If passed, the 2023 NDAA would authorize $10 billion of defense aid to Taiwan, add five F-35s to the Air Force’s fleet and allow the Pentagon to buy 15 Arleigh Burke-class destroyers. The total price tag: $857 billion, an 8 percent increase from the prior year and $45 billion more than President Joe Biden requested.
What the massive bill won’t do, however, is get rid of several use of force authorizations, one of which dates to the Eisenhower administration, that have been lingering on the books for years. Despite a push by several lawmakers to repeal these outdated provisions by attaching them to the draft NDAA, their efforts fell short. Proponents of the push, including congressman Peter Meijer (R-Mich.), were infuriated. “The sad reality about Congress is that without a strong political incentive, there is more risk in trying to fix what’s broken than just leaving it alone,” Meijer tweeted on Dec. 7. “Even when not a soul speaks in opposition or can articulate a rationale against, the status quo nonetheless prevails.”
It’s difficult to disagree with his assessment. Who in their right mind could legitimately argue that a measure permitting the president to come to the defense of any nation in the Middle East attacked by a country “controlled by international communism” is still operable in the 21st century? Who could legitimately make the case that the 2002 authorization against Iraq remains a critical authority for the president to keep in his back-pocket, particularly when the target of that authorization—Saddam Hussein—has been dead for 16 years? Why on Earth is the 1990 Gulf War Resolution, which authorized the president to use force to evict the Iraqi army from Kuwait, still a law of the land, when the Iraqi army is in fact a U.S. security partner in the region today?
Objectively, there is no need for any of these resolutions. Allowing them to fester is the legislative equivalent of purposely keeping a bottle of mustard from the 1990’s in the back of your refrigerator. It just doesn’t make sense.
What explains the nonsensical behavior? Several explanations are at work.
The most poignant is the complete lack of political will to actually go through the process of taking votes on war and peace, the most consequential vote a lawmaker can take in their career. Nobody in Washington has ever been penalized for avoiding a tough vote on the subject. One can’t say the same thing about actually taking those votes. Former senator, secretary of state and presidential candidate Hillary Clinton’s decision to support the war in Iraq long dogged her career. Lawmakers and aspiring candidates for higher office have concluded that avoiding war votes is as critical to one’s self-preservation as avoiding the plague.
The problem, however, is this behavior is totally contrary to the roles, responsibilities, and prerogatives the U.S. Constitution levies on the legislative branch. The Constitution couldn’t be any clearer: “The Congress shall have Power … to declare war, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” In layman’s terms: Congress, not the president, determines when the country goes to war. Taking the easy way out by ducking your head in the sand essentially renders one of the country’s most critical constitutional clauses irrelevant. The decision to take the entire nation into wartime would then rest on the shoulders of a single individual.
There are many lawmakers who strongly justify their lack of action as a way of preserving the president’s flexibility. The Constitution states that the president is the commander-in-chief, with all the powers that weighty position entails. Seen through this lens, legislators are wary to be seen as tying the president’s hands or limiting their power to respond in the event of an emergency. This was the rationale used by Senate Minority Leader Mitch McConnell during a June 2021 floor speech on the topic.
Yet this, too, is dangerous, for the longer these war resolutions are alive, the more likely they will be twisted into a legal pretzel beyond their original meaning. This is exactly what occurred with the 2002 AUMF, when the Trump administration used it to justify its airstrike against Iranian Gen. Qassem Soleimani on the outskirts of the Baghdad International Airport. The 2001 AUMF, which passed overwhelmingly a week after the 9/11 terrorist attacks and gave the president the green-light to wage war against Al-Qaeda and the Taliban, has since been employed in multiple countries, including Libya, Somalia, Jordan and the Philippines. Lawmakers need to ask themselves whether this snowball effect is acceptable—and if it isn’t, what they can do to remedy it.
On war and peace, the U.S. is turning into a bona-fide monarchy. It will continue to tread in this direction unless the legislative branch claws back its authority. Nobody else is going to do it for them.
Daniel R. DePetris is a fellow at Defense Priorities and a foreign affairs columnist for the Chicago Tribune and Newsweek.
The views expressed in this article are the writer’s own.
