WASHINGTON (The Hill) — Joe Biden’s strike in Syria is reviving a dormant fight over war powers as Congress looks to claw back some of its authority.
The military action sparked grumbling from Democrats who say they weren’t adequately consulted on the strikes and questioned where Biden drew the authority, which the White House says falls under his powers as commander in chief.
The war powers debate will have repercussions beyond just Syria, but senators say it underscores that while the administration has changed since the last time the issue was in the spotlight, the need for action from Congress hasn’t.
“Last week’s airstrikes in Syria show that the executive branch, regardless of party, will continue to stretch its war powers,” said Sen. Tim Kaine (D-Va.).
Attempts to rein in a president’s war authorities frequently divide the two ends of Pennsylvania Avenue and are a landmine of competing and conflicting interests: Presidents are loath to give up power, with Republicans often wary of military restrictions in general, while Congress has increasingly given away its powers in recent decades.
“I think the problem is mostly inside these walls. I think it’s really had to define who America’s enemies are today and Congress … generally doesn’t want to get involved in that work, so I think Congress has over the years has just been very used to outsourcing those decisions,” said Sen. Chris Murphy (D-Conn.).
Kaine and Sen. Todd Young (R-Ind.) led a bipartisan group on Tuesday that introduced legislation to repeal the 1991 and 2002 war authorizations, both of which deal with Iraq. Senators say they want to formally take the Gulf and Iraq war authorizations for the use of military force (AUMFs) off the books to prevent potential misuse down the line.
This isn’t the first time Congress has tried to repeal the decades-old authorizations. Kaine and Young introduced similar legislation in 2019, but it languished in the Senate Foreign Relations Committee. The House voted last year to repeal the 2002 authorization, drawing a veto threat from Trump. The measure did not advance in the GOP-controlled Senate.
Even though the 2002 law was authorized to invade Iraq, then-President Obama cited it as legal justification for action in Syria against ISIS, and the Trump administration initially cited it for strikes against Iran.
Kaine said he informed the White House of his bill during a call on Monday evening and sent them a copy, describing them as open to a discussion.
“I’m happy to say the White House seems really willing to engage,” he told The Hill.
Asked about the division lines between the branches of government, Kaine predicted that “we’ll run into it again.”
“The reason that I think it might go somewhere now is you’ve got a number of Republicans who I think were interested in the position last time, but they didn’t want to cross Trump,” he added.
Five House committee chairs also sent Biden a letter earlier this year urging him to support nixing the 2002 authorization and reforming the 2001 law that was passed to fight al Qaeda.
In a symbolic win, Democrats who have long pushed to repeal or revamp the war authorities got language included in the 2020 party platform committing to work with Congress to repeal the AUMFs and “replace them with a narrow and specific framework.”
Secretary of State Antony Blinken told senators during his confirmation hearing that Biden “feels very strongly” about revamping the military authorizations — but acknowledged a deal won’t be easy.
“For some the porridge is too hot, for others the porridge is too cold. And can we get a consensus around what’s just right? But I would be determined and committed to working on that,” he said.
A push to reform the 2001 authorization could be politically trickier.
Kaine said that he was having discussions with senators about ideas on how to reform the authorization, which was drafted to take military action against those who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” But since 2001, it’s been stretched more broadly to greenlight operations that critics argue have a tenuous or no connection to 9/11.
“We’re engaging in a rewrite of ‘01. … But we don’t yet have a proposal,” Kaine said.
Murphy said Congress should work closely with the Biden administration about how to rewrite the 2001 authorization but noted that it would be “tricky.”
“What I think we should do is sunset the 2001 AUMF, in part as a forcing mechanism to write a new authorization,” he said.
Murphy predicted that the divisions would fall along party lines and less of a gap between a Democratic administration and congressional Democrats.
“There has historically not been much Republican interest in rewriting the 2001 AUMF,” Murphy said.
But Murphy said there are bipartisan conversations ongoing, including with Sen. Mike Lee (R-Utah), about reforming the War Powers Resolution, which lays out things like congressional notification requirements for military action and how long troops can remain without congressional approval.
“There’s a few of us talking across the aisle on war powers reform,” he said. “Mike Lee and myself have been … talking about the entire war powers statue, which is obviously in need of an update.”