Unlikely Senate alliance aims to claw back Congress’ foreign policy powers ‘before it’s too late’

By | July 20, 2021

A bipartisan group of senators is pushing to grant Congress an unprecedented role in crafting U.S. foreign policy and drastically expand lawmakers’ ability to roll back key presidential national-security decisions.

A newly unveiled bill effectively recalibrates the balance of power, putting Congress on near-equal footing with the commander-in-chief as the driver of Washington’s posture toward the world. It aims to reverse the decades-long erosion of the House and Senate’s authority to shape American foreign policy.

“Before it’s too late, Congress needs to reclaim its rightful role as co-equal branch on matters of war and national security,” said Sen. Chris Murphy (D-Conn.), who introduced the bill alongside Sens. Mike Lee (R-Utah) and Bernie Sanders (I-Vt.). “The bipartisan National Security Powers Act will make sure that there is a full, open and public debate on all major national security decisions.”

The bill would make it easier for lawmakers to outright reverse the president’s foreign-policy decisions — potentially even in real-time — including on war authorizations, weapons sales and emergency declarations.

Its introduction marks a watershed moment on Capitol Hill, where lawmakers on both sides of the aisle are growing increasingly amenable to restricting presidential power, with progressive Democrats and libertarian Republicans joining forces on various efforts.

Murphy said the bill aims to chart a course correction for Congress, which has “acquiesced to the growing, often unchecked power of the executive to determine the outline of America’s footprint in the world.”

Presidents have long relied on open-ended emergency declarations, existing war authorizations and other means to sidestep congressional involvement in global conflicts, especially as those fights metastasize or diminish over time, rendering lawmakers powerless as the commander-in-chief goes it alone.

The National Security Powers Act repeals all existing war authorizations and would automatically cut off funding for military operations that do not have explicit approval of Congress. It would also require those authorizations to include a specific end date in order to protect against open-ended military conflicts. Perhaps most notably, it repeals the War Powers Act, the 1973 law that presidents have long flouted to evade congressional approval.

Further, the bill requires both chambers to approve most weapons sales to foreign countries and entities. Currently, the administration is required to notify foreign-policy committee leaders on Capitol Hill, and the sale automatically goes through unless the House and Senate act to reverse it within 30 days with a veto-proof majority vote. Former President Donald Trump frustrated lawmakers when he used legal loopholes to prevent Congress from adequately considering expensive arms sales to security partners in the Middle East, such as Saudi Arabia and the United Arab Emirates.

The legislation builds on the trio’s previous work on an ultimately unsuccessful push to cut off U.S. support for the Saudi-led coalition in Yemen, where a civil war has ravaged the country and even spurred a famine. The three senators are among Congress’ most vocal proponents of clawing back what they see as the legislative branch’s rightful powers.

“America’s global standing, treasure, and brave servicemembers are being lost in conflicts the people’s legislators never debated,” Lee said. “In areas where the Constitution grants broad powers to Congress, Congress is ignored.”

Another key pillar of the legislation is the rollback of the commander-in-chief’s authority to declare national emergencies that grant him expanded powers to deal with national-security threats. The bill would require the president to ask Congress to approve all emergency declarations as well as outline the president’s specific powers related to the declaration within 30 days.

Rep. Jim McGovern, a Massachusetts Democrat who chairs the House Rules Committee, is taking the lead on the lower chamber’s version of the newly-introduced legislation.

Critics are likely to contend that the bill unnecessarily hamstrings the president’s authority to protect Americans from terrorists and other threats around the world, and that it’s not practical given the often time-sensitive nature of presidential decision-making.

Proponents argue that many of the powers outlined in the bill inherently belong to lawmakers.

“This is a re-taking, not a wrestling away, of powers” from the executive branch, a person familiar with the legislation said.

It’s unclear if President Joe Biden and congressional Democratic leaders will back the measure. The person familiar with the bill said lawmakers were in the “initial phase” of talks with House and Senate leaders about a potential path forward both on the floor and in committee. “It’s the early days still,” the person added.

Biden has shown a willingness to engage with lawmakers on similar balance-of-power issues. But he has also renewed long-standing presidential emergency declarations — some of which have been on the books for decades — without input from Congress.

Lawmakers have long lamented their dwindling ability to act as a check on a president’s foreign policy. Presidents of both parties have taken advantage of legal loopholes to expand America’s presence far beyond Congress’ intentions — including in Yemen, Syria and Libya.

And while that role falls chiefly to the executive branch, the Constitution outlines specific authorities for the legislature.

That includes, most notably, the power to declare war. Biden has nominally supported congressional efforts to scale back his war-making powers and has relied principally on his Article II powers to strike Iran-backed proxies in Iraq and Syria that have recently stepped up their attacks on American troops in those countries.

Last month, the House voted to repeal the authorization for the use of military force, known as AUMF, that was first adopted in 2002 for U.S. military campaigns in Iraq. The chamber has also voted to repeal other Iraq-related AUMFs. The Senate is expected to follow suit on the 2002 repeal later this year.

Biden has also communicated to Congress that he supports a new war powers vote for the myriad of terror threats emanating from the Middle East, some of which were covered under the AUMF that passed overwhelmingly in the days following the Sept. 11 attacks in 2001.

The National Security Powers Act would jump-start that process by wiping the 2001 AUMF off the books.