For decades, presidents have asserted the sweeping unilateral authority to use military force absent congressional authorization, declare emergencies in perpetuity, and sell weapons without meaningful oversight from Congress. These actions and Congress’s own inaction have relegated the people’s representatives to the role of junior partner on matters of war powers, national emergencies, and arms sales.
The bipartisan introduction of two bills — the National Security Powers Act (NSPA) in the Senate and the similar National Security Reforms and Accountability Act (NSRAA) in the House — stands to change this. These bills position Congress to reclaim its constitutional role on matters of war and peace by proposing sweeping reforms in three domains: war powers, national emergencies, and arms sales.
An Overview of the Bills
The NSPA and NSRAA would reassert Congress’s role in the areas of war powers, national emergencies, and foreign arms sales. The bills — introduced in the Senate and House, respectively — have received support from lawmakers of both parties and a host of groups across the ideological spectrum.
Consistent with the intent and spirit of the Constitution, the NSPA and NSRAA would require congressional authorization for all military actions, minimizing loopholes that presidents of both parties have used to avoid consulting Congress before using military force.
Automatic termination of funding for unauthorized actions, limiting the president’s discretion to engage U.S. forces unilaterally: In genuine emergencies, where the president must take action before Congress has time to act, the bills allow presidents to proceed without prior approval – but only for a limited period of time. Under the bills, funding for any military action initiated by the president would automatically terminate after 20 days unless Congress authorizes that action. This 20-day period could be extended to a maximum of 30 days if the president justifies the military necessity of that extension to Congress.
No more zombie AUMFs: The bills require military force authorizations to be reauthorized every two years.
Establishing clear guidelines for when the president must consult Congress: The bills define the term “hostilities,” limiting the president’s ability to circumvent Congress by claiming an action doesn’t rise to the level of requiring congressional authorization.
By withdrawing the presumption of approval for certain arms sales, the bills require the president to consult meaningfully with Congress before selling dangerous weapons abroad. While bipartisan majorities have voted to block arms sales in the past, the current presumption of approval means that Congress is required to muster a veto-proof supermajority in both chambers to block a sale from proceeding—something that has never occurred.
Congress must affirmatively vote to approve significant arms sales: The bills require congressional approval for foreign arms sales above a particular monetary threshold to countries outside the NATO alliance and a list of certain key defense partners, ending the de facto requirement that Congress muster a veto-proof supermajority to halt an arms sale.
Continued support for NATO allies and key defense partners: The presumption of approval for arms sales to NATO allies and key defense partners (enumerated in the bills) would remain, ensuring that the U.S. continues to deliver on its promise of providing robust and timely assistance to its allies and closest partners.
The bills prevent the president from exercising emergency powers in perpetuity or unilaterally maintaining and extending emergencies for decades.
Automatic termination of presidentially declared emergencies: The bills provide that unless congressional authorization is obtained, a president’s authority to exercise emergency powers pursuant to an emergency declaration will automatically terminate within 30 days.
Limiting the scope: The bills require that the national emergency powers the president exercises must be directly related to the declared emergency.
No more “permanent emergencies”: The bills provide that emergency declarations must be reapproved each year and may have a maximum duration of only five years.
Both bills are backed by a broad bipartisan coalition:
The NSRAA, introduced in the House by Reps. Jim McGovern (D-MA) and Peter Meijer (R-MI) on September 30, 2021, is co-sponsored by 14 other members of Congress, including Reps. Nancy Mace (R-SC), Peter DeFazio (D-OR), Barbara Lee (D-CA), Joaquin Castro (D-TX), and Ted Lieu (D-CA).
A broad coalition of groups from the left and right have praised the NSPA and NSRAA, authored letters in support of the bills in July and September 2021, and called on Congress to push forward with these important reforms. These groups include the ACLU, Brennan Center for Justice, Center for American Progress, Center for Civilians in Conflict, Center for International Policy, Common Defense, Concerned Veterans for America, Demand Progress, Foreign Policy for America, FreedomWorks, Friends Committee on National Legislation, International Crisis Group, Indivisible, Niskanen Center, Open Society Policy Center, Oxfam America, Project on Government Oversight, Protect Democracy, Public Citizen, Quincy Institute for Responsible Statecraft, R Street Institute, VoteVets, and Win Without War.
Here’s what experts, lawmakers, and commentators across the ideological spectrum have had to say about the bills:
Brian Finucane, Time for the Biden Administration to Disavow the Dangerous Soleimani Legal Opinions, Just Security (Jan. 3, 2022): “Reducing the risk that the Commander in Chief will take the United States to war, including a regional armed conflict, on his or her own initiative requires, first and foremost, structural reform to rebalance the allocation of war powers between Congress and the President. Bipartisan legislation such as the Senate’s National Security Powers Act and its House equivalent, the National Security Reforms and Accountability Act, represents bold moves in that direction.”
Sen. Mike Lee, Why I Am Fighting to End the Rubber Stamp for War, Responsible Statecraft (Sept. 20, 2021): “In Congress, a substantive debate on war powers is long-overdue…. I along with my colleagues Chris Murphy (D-CT) and Bernie Sanders (I-VT) introduced the National Security Powers Act earlier this year, which would restore Congress’ role in national security decision-making, primarily in the war-powers arena.”
Gary Hart, Richard Gephardt, Joel McCleary & Mark Medish, Why Trump’s Chaos Requires New Guardrails on Biden, Politico (Sept. 15, 2021): “Sens. Chris Murphy (D-Conn.), Mike Lee (R-Utah) and Bernie Sanders (I-Vt.) have also come together with the National Security Powers Act, which would require congressional approval for the president to declare national emergencies, conduct arms sales and use military force. The bill would be the most important recalibration of the balance of power between the president and Congress in decades.”
Tess Bridgeman & Stephen Pomper, A Giant Step Forward for War Powers Reform, Just Security (July 20, 2021): “Perhaps what is most exciting about the NSPA is the boldness of its vision … This bill is a giant leap forward for war powers reform … [A]s it stands, it is a remarkable achievement that tackles all of the major shortcomings of the WPR as enacted and the pathologies in its implementation over the decades.”
Congress’s own inaction has relegated the people’s representatives to the role of junior partner on matters of war powers, national emergencies, and arms sales.
