Restoring the Balance of National Security Powers
In order for Congress to represent the American public effectively, the public must be able to provide their representatives its views on matters of public policy. This is particularly critical when it comes to decisions to go to war — a decision in which all Americans have a stake. Recognizing this, the founders of the United States created a system that would ensure that Congress — the governing body closest to the American people, and best able to represent their views — held power over vital questions of national security.
The founders placed warmaking in Congress’s hands because kings had gone to war in their own vision of the “public interest,” and the founders wanted a more broadly conceived public interest to govern national security decisions in this country. And yet for decades presidents have claimed broader and broader authority to take the country to war while Congress has abdicated its responsibilities. The current administration has leaned into this imbalance, acting as if there are no limits on a president’s authority to go to war.
Protect Democracy is working with a diverse ideological coalition to rebalance our constitutional system of checks & balances by restoring Congress’s power in national security areas such as national emergencies and war powers. The core idea taken up by the reform coalition is a proposal that would shift to a system where actions taken by the President automatically sunset.
Congress has demonstrated repeatedly that these are bipartisan issues.
In March and September 2019, the Republican-led Senate voted twice to terminate President Trump’s declaration of a national emergency at the southern border under the National Emergencies Act of 1976.
In March 2019, with Republican and Democratic support, the Senate voted to end the administration’s support for military action in Yemen under the War Powers Resolution of 1974.
In July 2019, the Senate voted to block arms sales to Saudi Arabia and the UAE under the Arms Export Control Act of 1976.
On February 13, 2020, the Senate voted across party lines to make explicit that all future military action against Iran is prohibited.
The Rules Committee, typically one of the most partisan committees on the Hill, held a hearing on March 3, 2020 on “Article I: Constitutional Perspectives on the Responsibility and Authority of the Legislative Branch.”
We believe there is now real bipartisan momentum—from in and outside Congress—behind reform, and that Congress is finally ready to do something about it in a meaningful and bipartisan manner.
For decades, the Executive Branch has expanded its powers without any meaningful response from Congress. Under our system of checks and balances Congress has a substantial role in deciding when and how we go to war, when we sell arms to foreign actors, and the scope of powers granted to the president to respond to national emergencies.
Congress invoked these powers when it enacted the War Powers Act and the National Emergencies Act. With these Acts, Congress delegated authority to the President to act, but retained the right to adopt resolutions that would withdraw those delegations without needing a presidential signature. A 1983 Supreme Court opinion, INS v. Chadha, undermined this powerful checks on presidential power that exist in those acts when it held acts of Congress that don’t receive presidential signature are unconstitutional. Now Congress must override a presidential veto to flex its muscle and exercise its authority to rein in the Executive.
Congress’s actions to check this administration — votes to end the alleged national emergency at the border, to limit the U.S.’s involvement in the Civil War in Yemen, and to block the sale of arms to countries involved in the conflict in Yemen, amongst others — have each been vetoed by the President. Notably, every one of President Trump’s six vetoes have been used to suppress congressional efforts to check the Executive’s use of powers that Congress allowed the president to use on a conditional basis.
It’s critical that our elected representatives are able to effectively assert their authority over policy matters that impact Americans’ security. Congress is considering an innovative measure that offers a promising path forward: Sunset and Renew. Under this approach, Congress must renew Presidential actions within 30 days for them to remain in effect.
On July 24, 2019, the Senate Homeland Security and Governmental Affairs Committee voted out a bill, Senator Mike Lee’s ARTICLE ONE Act (S. 764), that would apply the Sunset and Renew mechanism to questions of National Emergency. It was reported out of committee with an overwhelming, bipartisan majority: 11-2.
The ARTICLE ONE Act contains important innovations to prevent Executive abuses on national emergencies:
- Any new national emergency declaration will end (sunset) 30 days after being declared by the President unless Congress votes to renew the declaration. This requirement will restore the National Emergencies Act to its original purpose: giving the President the power to respond to true emergencies that would endanger the public without an immediate response—not the power to make long-term change without Congress’s approval.
- Any national emergency that Congress does renew will require annual renewal. This requirement will ensure that by declaring a national emergency and obtaining initial approval, the President does not forever wrest from Congress its power over the purse.
- Once Congress chooses not to renew a national emergency, the President will be prohibited from redeclaring a national emergency concerning the same subject matter. This requirement will prevent presidents from abusing the sunset provision in the bill.
- Expedited procedures will ensure that a resolution to renew a national emergency will get to the chamber floor for a vote. This will guarantee that the floor schedule does not prevent Congress from asserting its constitutional prerogatives.
The House Rules Committee is building on some of the reform ideas contained in the ARTICLE ONE Act. The Rules Committee, typically one of the most partisan committees on the Hill, held a hearing on March 3, 2020 on “Article I: Constitutional Perspectives on the Responsibility and Authority of the Legislative Branch.”
Protect Democracy has joined with a diverse ideological coalition that is working with Congress to fix our constitutional system of checks and balances by restoring Congress’s stake in decisions to go to war, emergency declarations, and other matters of national security.
The coalition has also published a Statement of Principles, which is below:
Statement of Principles
All Americans have a stake in decisions to go to war, bypass ordinary laws through emergency declarations, or sell weapons to foreign regimes. That is why the founders of the United States created a system that would ensure that the collective judgement of Congress and the President would apply to vital questions of national security.
However, the system of checks and balances enshrined in the Constitution is broken. This is a bipartisan problem, created through generations of presidential power grabs, and by Congress’s failure to do its job. As a result, it has become practically impossible for the public to have their say in debates that have huge implications both for the American people and for international peace and security.
In recognition of this problem, we, the undersigned organizations, commit to the following principles and will be working towards structural reforms that restore the balance of national security powers between the President and Congress.
- Military interventions, emergency declarations, and arms sales are areas where the President may act only with authorization or approval from Congress.
- In genuine emergencies where Congress has no time to act, the President may proceed without congressional approval—but only for a limited period of time.
- These national security powers must be used for clearly defined purposes, subject to regular review by Congress, and only as a last resort.
We look forward to working with those who will rise above partisanship and parochial interests to restore these fundamental checks and balances.
Brennan Center for Justice at NYU Law School
Bring Our Troops Home
Center for American Progress
Concerned Veterans for America
Foreign Policy for America
Friends Committee on National Legislation
International Crisis Group
Open Society Policy Center
Project On Government Oversight
Quincy Institute for Responsible Statecraft
R Street Institute
Win Without War
Several members of the coalition have called on Congress to enact reform legislation to reclaim its authorities over war powers.
- Mort Halperin & Soren Dayton, “Can Congress reclaim authority it has handed over to the president? It’s trying.” Washington Post (August 20, 2020)
- Soren Dayon & Anthony Marcum, “Some good news from the Hill: Congress is standing up for itself, together,” The Fulcrum (March 12, 2020)
- “Mr. President, You’re Not a King” video campaign: War Powers and Emergency Powers (February 2020)
- Soren Dayton, 2020 candidates National Security Powers memo (February 2020)
- Erica Newland & Scott R. Anderson, “Why the Trump Administration May End Up in Court Over War Powers Reporting,” Lawfare (February 28, 2020)
- “GOP senators introduce bill to rein in president’s emergency powers,” The Hill (March 12, 2019)
Protect Democracy has filed several lawsuits related to war powers transparency.
FOIA lawsuit regarding the strike against Qasim Soleimani.
- Complaint (January 22nd, 2020)
- Motion for Preliminary Injunction (January 22nd, 2020)
- Amended Complaint (February 19th, 2020)
- Motion for Preliminary Injunction (February 19th, 2020)
- Government’s Opposition to PI Motion (February 26th, 2020)
- Reply in Support of PI Motion (March 3rd, 2020)
- Government’s Answer (March 4th, 2020)
- Notice Regarding Escalating Hostilities with Iran (March 17th, 2020)
- Government’s Notice of OLC Memorandum (March 19th, 2020)
- Joint Status Report (April 3rd, 2020)
- Partial FOIA Response from DOJ’s Office of Legal Counsel (May 11, 2020)
- Interim FOIA Response from the Department of Defense (May 11, 2020)
- Government’s Motion for Summary Judgment (July 2, 2020)
- Protect Democracy’s Motion for Summary Judgment and Opposition to Government’s Motion for Summary Judgment (July 16, 2020)
Lawsuit on the War Powers Transparency Report with Democracy Forward, Ben Wittes, and Scott Anderson.
- Complaint (June 9, 2020)