House Votes to Repeal 9/11 AUMF

Democrats are trying to rein in President Trump. It won't work.

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Matt Fuller and Amanda Terkel think Nancy Pelosi and House Democrats have found a way to stop President Trump from recklessly attacking Iran if only they show resolve. Alas, they are wrong.

House Democrats passed a nearly $1 trillion appropriations bill on Wednesday, complete with funding for the military, health programs and the Energy Department. But 11 lines in the 667-page bill could literally be the difference between war and peace, life and death: a repeal of the 2001 Authorization for Use of Military Force.

Three weeks after the 9/11 terrorist attacks, lawmakers overwhelmingly ― 420-1 in the House, 98-0 in the Senate ― approved the 2001 AUMF. The text of the resolution is incredibly broad. Congress gave the president the authority to use “all necessary and appropriate force” to go after the “nations, organizations, or persons” who were involved in the 9/11 terrorist attacks. But there’s more.

The resolution also gave the president the authority to go after anyone who “harbored” those people, “in order to prevent any future acts of international terrorism against the United States.”

Not many lawmakers anticipated that, 18 years later, the United States would still be using the 2001 AUMF to justify military action all over the globe. Three different presidents have used the AUMF for more than three dozen different military engagements in 14 different countries.

And now, with President Donald Trump and his administration strongly signaling they would use the 2001 AUMF to justify a new war with Iran, the newish Democratic majority controlling the House is taking its most serious steps to repeal the war authority.

Included in the base text of the appropriations bill is a provision that would repeal the 2001 AUMF eight months after the legislation is enacted. It is a significant development in Congress trying to restrain Trump and many of his most hawkish advisers’ thirst for war. And it’s the first time the House has passed a repeal of the 2001 AUMF.

But surely Fuller and Terkel understand that this is a political stunt, not a meaningful check on Trump’s powers?

But this bill is almost certainly not the bill that will make it to Trump’s desk. This is the first serve in an appropriations pingpong match between the Democratic House and the Republican Senate. Senate Majority Leader Mitch McConnell (R-Ky.) ― much less Trump ― is unlikely to accept such a repeal, and there’s serious doubt among Democrats that their leadership would risk a shutdown over Senate Republicans refusing to repeal the 2001 war authority.

“We are not the party of shutdowns,” Rep. Jamie Raskin (D-Md.) told HuffPost this week. “That is not our position.”

If Democrats aren’t willing to risk a shutdown over repealing this 2001 military authorization, however, then they’re almost already giving up the game. They may have found a gambit that could potentially limit the president’s ability to go to war with Iran, but they face stiff opposition to a full-scale AUMF repeal not just from McConnell and Trump but also national security adviser John Bolton and Secretary of State Mike Pompeo. And even if they do plan to give up on repealing the 2001 war authority, they could still face stiff opposition in pursuing a middle-of-the-road approach.

None of this makes any sense. Fuller and Terkel acknowledge that this is DOA in the Republican Senate and, even if it somehow made it through, Trump would veto it. So . . . they’re proposing that House Democrats shut down the government until they get their way?

Let’s say Pelosi and company decide this is indeed a hill they want to die on. Trump and Republicans will paint this—-successfully, I think—as Democrats being soft on terrorism. It’s politically moronic.

And I say that as someone who agrees both that it’s time to repeal the 2001 AUMF and that starting a war with Iran would be bad, indeed. It absolutely makes sense for Democrats to make those cases to the public. But a government shutdown would simply backfire.

Furthermore, while Presidents Bush, Obama, and Trump have all indeed used the 2001 AUMF to justify actions completely unrelated to pursuing al Qaeda, it’s not as if they couldn’t have found another pretext absent that authorization. Going back to the Cold War, presidents have used the fact that we have a large, standing military of which they are the Commander-in-Chief to utilize that instrument as they saw fit.

Congress recognized this reality with the 1973 War Powers Resolution, passed over President Nixon’s veto. For all practical purposes, it concedes that presidents have the right to initiate military action on their own authority. Yes, it stipulates that the power should be “exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” But, in reality, it has been interpreted as a blank check for presidents to utilize force for 60-90 days.

Beyond that, presidents going back to Nixon have argued that the Resolution is an unconstitutional infringement on their power. Some Members of Congress tried to sue President Clinton over his exceeding the 60-day ceiling in Kosovo but both the trial and appeals court ruled they lacked standing; the Supreme Court declined to take the case. Similarly, President Obama thumbed his nose at Congress during the Libya operation, claiming both that the Resolution was unconstitutional and, besides, the actions didn’t constitute “force” as contemplated by the law.

All of which is to say that, even if House Democrats were somehow able to force a repeal of the 2001 AUMF through a government shutdown—and even if that wasn’t going to be a massive gift to Republicans come next November—it wouldn’t matter a tinker’s damn. Unless we’re going to draw down the US military to a constabulary force—which would be an incredibly bad idea—-there’s simply nothing Congress can do a priori to stop any president from taking whatever military action he deems appropriate.

FILED UNDER: Congress, Military Affairs, National Security, Presidency, U.S. Constitution
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Dave Schuler says:

    Good. It’s at least a start.

  2. KM says:

    Trump’s gonna Trump. He’s got people ragging on him to start a war with Iran and I’ll eat my car if they’re not pushing the angle that Congress will try to stop him from his (regrettable right now) rightful ability to send soldiers to their deaths. He’ll see this as a personal attack, not as Congress trying to keep this country out of another pointless war.

  3. OzarkHillbilly says:

    It’s politics, but that doesn’t make it any less important to do.

  4. Kathy says:

    Even with the 2001 AUMF, Bush the younger still extracted a resolution from congress for the ill-conceived adventure in Iraq.

    I don’t expect Trump to go to Congress, but Congress could pass a resolution demanding Dennison ask before launching a war on Iran, making it explicit the AUMF doesn’t apply to Iran.

    This could work, or it could make Trump’s brain (ie Bolton), cook up a slow escalation like Vietnam (another great success in the annals of terrible quagmires) . You know, first you shoot a few missiles, then drop a few bombs, then send in some troops to protect some border, then send the troops in. The downside, for Bolton, is that Trump wouldn’t have the patience to proceed that way.

  5. mattbernius says:

    @Dave Schuler:

    Good. It’s at least a start.

    Agreed. I just hope that Democrats are willing to continue down this path if/when a Democrat takes the presidency in 2020. Especially if they also take the Senate.

    Likewise it would be great if they revisited the National Emergency Act as well.

  6. Kathy says:

    The one really unfortunate thing here, is that what is good policy is often not very good electoral politics. I don’t think many people, even likely voters, will care much about baiting or taunting Iran, so long as no war breaks out. So preemptively trying to stymie Dennison won’t play well in the hustings.

    If war breaks out, there will be a lot of support. There always is. Even if the reason is “Iran reacted aggressively to our provocations.”

  7. SC_Birdflyte says:

    My fellow Americans, I have a dream. In my dream, a President can commit troops to any military action for up to 90 days without specific authorization. If he chooses to pursue a military solution after 90 days, each week, there is a national lottery. The President, all members of Congress, all members of the Cabinet, and all Supreme Court Justices have their names put into a hat. The lucky winner is taken off and shot within 30 minutes, with no right of appeal. The next week, 10 names are drawn; the week after, 50 names. Each week thereafter, 50 new names.

    Well, I can dream, can’t I?

    5
    1
  8. Daryl and his brother Darryl says:

    I think this is the right thing…Congress should take back some of the power it has been abdicating for decades. Not just with Dennison in office, but definitely with Dennison in office.
    Of course nothing will happen…Democrats will wave their fists and write some letters…but Bolton is going to get his wet-dream war. He simply has to manipulate the most easily manipulated person on the planet.

  9. Jay L Gischer says:

    Maybe the point of this is just to get a look at poll numbers on the issue. I mean, I think there are a significant number of Republicans who maybe think that Trump is convenient, but can’t really be trusted to tell the truth and to run a war.

  10. Dave Schuler says:

    @mattbernius:

    At the very least it should encourage the subject to be something that will be discussed during an election year. As it should be.

  11. gVOR08 says:

    This is good politics, as is the whole idea of passing popular legislation even though it will die in the hands of Sith Lord McConnell. But only if people KNOW about it. I can’t find this story in either NYT or WAPO. Nor do they report anything else the House passes. GOPs have FOX to reliably spread their message. Ds have to depend on the supposedly liberal MSM. I don’t understand why the MSM is so afraid of offending the right. How can we make them as afraid of the center and left?

  12. Just nutha ignint cracker says:

    Is it possible that all the House Democrats are looking for is Senate Republicans to go on record as being the party of endless war?