Jonathan Turley on Presidential Abuse of War Powers

Below is the testimony of distinguished legal expert Jonathan Turley, Shapiro Professor of Law at George Washington University, from Senator Rand Paul’s hearing on “War Powers and the Effects of Unauthorized Military Engagements on Federal Spending.”

Professor Turley details the sad history of Congress refusing to do its constitutional duty by providing a check on executive war making, and he explains how the recent Authorization of Military Force, introduced by Senators Bob Corker (R-TN) and Tim Kaine (D-VA), would give the president a blank check to commit U.S. troops anywhere in the world without first obtaining any sort of authorization from Congress.

You can watch the hearing here and see Judge Andrew Napolitano’s testimony here. Professor Turley’s testimony can be read below or here.

Written Statement
Jonathan Turley
Shapiro Professor of Public Interest Law
The George Washington University

“War Powers and the Effects of vUnauthorized Military Engagements on Federal Spending”

Committee on Homeland Security and Governmental Affairs
Subcommittee on Federal Spending Oversight and Emergency Management
United States Senate
Dirksen Senate Office Building SD-342

June 6, 2018

I. INTRODUCTION

Chairman Paul, Ranking Member Peters, and members of the Subcommittee,

my name is Jonathan Turley and I am a law professor at The George

Washington University, where I hold the J.B. and Maurice C. Shapiro Chair

of Public Interest Law. It is a distinct honor to appear before you today to

discuss one of the most important powers contained in our Constitution: the

declaration of war by the Legislative Branch.

I come to this question as both an academic and a litigator in the field.

My past writings address the separation of powers, war powers, and the

military.1 I am also the former lead counsel for both Democratic and

Republican members in challenging the undeclared war in Libya under the

Obama Administration. My prior litigation also includes representing the

United States House of Representatives in its successful challenge to the 

unauthorized use of federal funds in Obamacare. I am admittedly an

unrepentant Madisonian scholar and, as such, I tend to favor a robust and

active role for Congress. I have previously testified against the

encroachment of the Executive Branch and the growing imbalance in our

tripartite system of governance. The rise of an uber presidency has

threatened the stability of our system. Much of this imbalance is due to the

acquiescence of Congress in yielding greater and greater authority to the

Chief Executive. The legislation under consideration today is one of the

most chilling examples of this acquiescence and the danger that it presents

for future generations.

There can be no weightier issue for Congress than the conditions

under which this nation goes to war. The costs of such decisions are real,

immediate, and often catastrophic for many families. If there is a sacred

article in the Constitution, it is Article One, Section Eight. It is not merely a

constitutional but a moral responsibility. Indeed, the words “Congress shall

have power to … declare War,” fails to capture the moral imperative. It is

not simply a power but rather an obligation that was meant to adhere to

every member upon taking the office of office. Unfortunately, from the

earliest stages of our Republic, members have struggled to avoid the

responsibility for declarations of war. Regrettably, the new Authorization

for the Use of Military Force, S.J. Res. 59, is the inevitable result of this

long history of avoidance. Despite some improvements, the thrust of the

proposed legislation is to give members a statutory shield from their

constitutional obligations over war making.

The new AUMF amounts to a statutory revision of one of the most

defining elements of the United States Constitution. Putting aside the

constitutionality of such a change absent a formal amendment, the proposed

legislation completes a long history of this body abdicating its core

responsibilities over the declaration of war. Indeed, Columbia Professor

Matthew Waxman recently offered what appears to be a collective shrug to

the obvious negation of the original design and intent of the Framers. In

speaking of the lack of a finite period of authorization in this legislation,

Waxman observed that “We’ll be engaged in an indefinite war either way.”2

If anything Waxman was understated. We are engaged in indefinite,

undeclared war – the very menace that the Framers sought to prevent with

express constitutional language requiring congressional declarations of war.

We find ourselves at this ignoble point not by accident but through decades

of concerted effort by Congress to evade the responsibility for the most

important decisions committed to it by the Framers. Yet, due to the

artificially narrow standing rules created by the federal courts, the

unconstitutionality of such a change may never be subjected to judicial

review.3 Thus, this legislation could prove not only unconstitutional but

unreviewable – an absurd position that would have mortified the Framers.

What we will be left with is indefinite undeclared war.

As discussed below, the new legislation would discard not just the

obligation to declare wars but even the obligation to secure prior

authorization for specific wars. If Congress implements this new system,

Article I, Section 8 will be left as little more than a husk of its original

design. Worse yet, the country will be left with a constitutional provision

that gives citizens a false assurance of a check on war powers. The

provision speaks loudly and clearly to Congress. However, the new AUMF

would reduce it to what Macbeth described as voices “full of sound and furry, signifying nothing.”

 

II. A Brief Historical Overview

In both the constitutional and ratifying conventions, the Framers carried out

passionate and detailed debates over the role of the “Chief Magistrate,”

including whether the presidency should actually be a committee of three to

avoid the concentration of powers in the hands of one person. The

overwhelming sentiment was that a president could not be trusted with the

sole authority to go to war. That was evident at the Constitutional

Convention when Pierce Butler proposed “vesting the power in the President,

who will have all the requisite qualities, and will not make war but when the

nation will support it.”5 He did not even receive a second to the motion.

The deep suspicion over the role of chief executive was captured in

the warning of Edmund Randolph that the creation of a single executive

would be the very “foetus of monarchy.”6 The compromise for such

delegates was to deny the president certain powers like the power of the

purse or the unilateral appointments of senior officials. However, the most

prominent concern was the ability of a president to commit the country to

war. This led to one of the most defining provisions of the Madisonian

system: to leave the decision to go to war with Congress rather than the

president. After framers like James Wilson voiced fears of an elected

monarch, their colleagues responded by denying the president the power

most associated with absolute rulers in the declaration of war. In the

Pennsylvania Ratifying Convention, Wilson assured his colleagues that the

greatest danger of a chief executive had been blunted through the declaration

requirement:

“This system will not hurry us into war; it is calculated to guard

against it. It will not be in the power of a single man, or a single body

of men, to involve us in such distress; for the important power of

declaring war is vested in the legislature at large: this declaration must

be made with the concurrence of the House of Representatives: from

this circumstance we may draw a certain conclusion that nothing but

our interest can draw us into war.”7

The framers saw presidents as the most likely to engage in foreign military

excursions. James Madison said it most succinctly in a letter to Jefferson:

“The constitution supposes, what the History of all …

demonstrates, that the Executive is the branch of power most interested in

war, and most prone to it. It has accordingly with studied care, vested the

question of war in the Legislature.”8 This key division of authority was

celebrated as the solution to the intractable problem of the predisposition of

chief executives toward war. Wilson proclaimed that “this system will not

hurry us into war … It will not be in the power of a single man … to involve

us in such distress . . . ” Jefferson stated in a letter to Madison that the

Framers had achieved an “effectual check to the Dog of war.”9 Even

Alexander Hamilton, an advocate for a strong chief executive, heralded the

key limitation on presidents in Federalist #69, stating that a president

“would be nominally the same with that of the King of Great Britain,

but in substance much inferior to it. It would amount to nothing more

than the supreme command and direction of the military and naval

forces, as first general and admiral of the confederacy; while that of

the British king extends to the declaring of war, and to the raising and

regulating of fleets and armies; all which by the constitution under

consideration would appertain to the Legislature.”10

What is most striking about these and other accounts is that the Framers

believed that Article I, Section 8 was one of the greatest triumphs of the

convention where they had established clear and undeniable obligations for

Congress. As Madison proclaimed in 1793, “the simple, the received and

the fundamental doctrine of the constitution, that the power to declare war

… is fully and exclusively vested in the legislature; that the executive has no

right, in any case to decide the question, whether there is or is not cause for

declaring war ….”11

These assumptions were quickly undone by the political impulse of

members to avoid responsibility over costly and unpredictable wars. The

compromise would become a rule honored almost exclusively in the breach.

In our roughly 250-year history, our country has been in dozens of largescale

military campaigns or wars. Yet, Congress has “declared war” only

five times – the War of 1812, the Mexican-American War, the Spanish-

American War, World War I, and World War II. There have been a total of

eleven declarations issued against different countries in the five declared

wars. Political convenience has trumped constitutional principle.

We did not even make it out of the eighteenth century before

Congress found an alternative to a declaration. In 1798, it passed An Act

Further To Protect The Commerce of the United States, which was then used

by John Adams to launch the Quasi-War with France. That legislation would

be a harbinger of the gradual erasure of the declaration provision. Faced with

the seizure of ships and other acts of war, Congress decided to pass a

generally worded measure “more effectually to protect the Commerce and

Coasts of the United States,” which authorized the President to instruct

military commanders to act against any “armed vessel” committing

“depredations on the vessels” belonging to United States citizens.12 It further

authorized the retaking of seized ships and later was amended to allow

commanders to “subdue, seize and take any armed French vessel which shall

be found within the jurisdictional limits of the United States, or elsewhere,

on the high seas . . . ”13 The legislation authorized acts of war without

formally declaring one, though this would be far more specific than later

resolutions. This practice allows members a degree of political cover in

passing legislation ostensibly to protect things like shipping while really

giving a president the right to wage war. Not only did Congress fail to

adhere to the language of the Constitution but the Supreme Court also failed

to maintain the clear lines of the Constitution in requiring a declaration.

Once Congress was allowed to avoid responsibility for a declaration, this

approach yielded more and more generally worded authorizations that gave

members plausible deniability if wars went badly.

In 1812, James Madison, as president, went to Congress to demand

that members carry out their express obligations under Article I. He

reminded Congress that declarations are not simply a bulwark against the

concentration of power in the hands of a single person. They are a vital

declaration of a free people before taking the most extreme measure as a

nation:

“Whether the United States shall continue passive under these

progressive usurpations and these accumulating wrongs, or, opposing

force to force in defense of their national rights, shall commit a just

cause into the hands of the Almighty Disposer of Events … is a

solemn question which the Constitution wisely confides to the

legislative department of the Government. In recommending it to their

early deliberations I am happy in the assurance that the decision will

be worthy the enlightened and patriotic councils of a virtuous, a free,

and a powerful nation.”14

A declaration therefore serves to rally a nation to speak as one in a clear and

informed voice. Such collective judgments are not always easy to secure.

They were not supposed to be. The Framers largely abhorred war and its

costs. They wanted to make it difficult by imposing an obligatory condition

on Congress. A nation needs clarity and consensus before unleashing, as

Jefferson puts, the “dogs of war.”

 

Yet, it is precisely that clarity and burden that politicians abhor. It

comes at a cost that has become easier and easier to evade. Our last

declaration of war was in 1942. Since that time, we have engaged in open

warfare in dozens of countries with hundreds of major military operations.

Presidents now have precisely the authority that the Framers sought to deny

them under the express language of our Constitution. Our current use of

AUMFs flies in the face of both the language and intent of the Framers.

Indeed, it makes a mockery of the statement of George Washington in 1793

that “The Constitution vests the power of declaring war in Congress;

therefore no offensive expedition of importance can be undertaken until after

they have deliberated upon the subject and authorized such a measure.”15

On a weekly basis, we see “offensive expedition of importance”

undertaken under the ambiguous authorizations of Congress.

 

III. THE AUMF, CONSTITUTIONAL AVOIDANCE, AND THE

CONSTRUCTIVE REPEAL OF ARTICLE ONE, SECTION EIGHT

The path to our current state of indefinite war was a long but straight

progression from a requirement of a clear declaration to open-ended

AUMFs. This path took the country through the infamous Gulf of Tonkin

incident on August 4, 1964 – an alleged attack on the USS Maddox that

became the pretext for the Vietnam War. If Congress believed that the

attack was genuine, it was an act of war but again members did not want to

take the responsibility for a formal declaration. Instead, it passed a resolution

on August 7, 1964, stating “Congress approves and supports the

determination of the President, as Commander in Chief, to take all necessary

measures to repel any armed attack against the forces of the United States

and to prevent further aggression.” It was a flagrant circumvention of the

 

Constitution by members of this institution that would costs the lives of tens

of thousands of American military personnel and ultimately shatter the lives

of millions. Nevertheless, it was the political costs that Congress sought to

avoid and members simply externalized the real and tragic costs to families

throughout this nation.

After allowing this nation to go into an undeclared war of dubious

origins, Congress was faced with a backlash from the public. It then became

popular to limit authority. However, rather than default back to the express

language of the Constitution, Congress passed the War Powers Act.16 The

Act allowed a President to use U.S. forces in combat in the event of “a

national emergency created by attack upon the United States, its territories

or possessions, or its armed forces.” However, it required the Executive

Branch to report to Congress within 48 hours of such a military action, and

required Congress to approve or reject the military action. Notably, such

approval reflects an ongoing military campaign. Yet, Congress would not

require prior approval or a formal declaration. Nevertheless, the resolution

was an effort to require congressional involvement. It was a sad reflection of

how far Congress had pushed itself into institutional obsolescence. It was

passing a resolution to try to remain relevant to war making.

Passed on September 14, 2001, the AUMF continues this ignoble

record in authorizing the President “to use all necessary and appropriate

force against those nations, organizations, or persons he determines planned,

authorized, committed, or aided the terrorist attacks that occurred on

September 11, 2001, or harbored such organizations or persons, in order to

prevent any future acts of international terrorism against the United States by

such nations, organizations or persons.” While some of us opposed the

language as wildly ambiguous and an effective blank check of undeclared

wars, members eagerly passed it. It notably went as far as to approve “all

necessary force” with no termination date. Not surprisingly, it was then used

to launch extended military operations in Afghanistan, Pakistan, Yemen,

Somalia, Syria, Iraq, and Libya. This included ground forces, drone strikes,

and the detention of thousands, including the establishment of the detention

center at Guantanamo Bay. It allowed the targeting of groups loosely

defined as connected to Al Qaeda, including ISIL and other groups that have

attacked Al Qaeda and its allies. According to the Congressional Research

Service, this broad authority has been used 37 times in 14 countries for acts

of war.

The 2001 AUMF embodies the key motivations behind the

circumvention of Article I. First, it avoids the personal accountability for

members to declare war and, second, it allows plausible deniability after

wars go wrong. After it was shown that the Bush Administration had

launched the war in Iraq on false representations of weapons of mass

destruction, various members (particularly presidential candidates) blamed

the Administration for the war and its costs. They cited the general language

and insisted that they never intended a war with these costs and duration.

The new AUMF reflects many of these same flaws while adding new

and disturbing elements. Admittedly, some of the flaws in this legislation

existed in some form in prior AUMF. The new measure would repeal the

2002 AUMF and partially repeal the 2001 AUMF. However, a number of

prior flaws – and new flaws – are evident in the new legislation, which

would not materially alter the scope or unilateral character of current

military campaigns. Indeed, it could make it far, far worse.

Before addressing some of these inherent dangers, it is important to

make a threshold objection to this and prior AUMF debates. There is a

certain path dependence that is evident in war powers debates. After

decades of open-ended resolutions, it is easy to confine the debate to simply

one of scope and standards rather than the original threshold constitutional

question. However, the original question remains. The Constitution allows

ample leeway for presidents to respond to attacks on this country. A

president has never been denied the right to respond to imminent attacks on

the United States. Absent such an imminent threat, the Constitution requires

a declaration of war. That requires a Congress to identify the enemy and the

reason for going to war. Many insist that the realities of modern war simply

do not allow for such clear determinations. In other words, we need to be in

continual war in too many places to seek individual authorizations. Yet, the

modern history of war making in the United States only shows the wisdom

of the Framers. Since breaking away from the clarity of Article I, we have

found ourselves in endless war where the targets are not even widely known

by the public. The United States is now at war in places like Yemen and

Somalia where we are simply seeking to degrade military capabilities of

terrorist groups as opposed to responding to a specific threat against the

United States.

If we did not have an AUMF, it is indeed possible that we would not

have the range of military operations that we have today. We have never

had that debate. As a result, citizens have no idea of the full range of

countries where we are currently engaged in combat. We no longer require

presidents to make that case and no longer require members to assume that

responsibility. The assumption that AUMFs are now essential components to

modern governance is hardly self-evident but, more importantly, it is

inconsistent with the express language of our Constitution.

 

For civil libertarians, the most glaring element to this debate is that

the long failure of Congress to assert its constitutional authority has led the

Executive Branch to claim a type of expanded authority by default. The

Office of Legal Counsel of the Department of Justice (OLC) previously

advised President Obama that he had the authority to attack Libya without

either an imminent threat to the United States or express authority from

Congress. It argued that Article I could now be interpreted through a

“historical gloss” of past unilateral military actions and the absence of

congressional opposition. A second OLC memorandum issued on May 31,

2018 built on this “historical gloss” and said that President Donald Trump

could also launch attacks on Syria without involving Congress. These

opinions seek to make congressional acquiescence into a critical element of

constitutional interpretation.

With that threshold reservation, I would like to address what I

consider the most serious flaws in the current legislation.17

 

A. “New Foreign Countries”

The new legislation uses rather opaque means to convey authority to

continue military operations against various states – wars that have never

been fully debated, let alone declared, by Congress. Buried in the legislation

is the following definition in Section 5 (c) that works as an effective

authorization:

“In this resolution, the term ‘‘new foreign country’’ means a foreign

country other than Afghanistan, Iraq, Syria, Somalia, Yemen, or Libya

not previously reported to Congress pursuant to this paragraph.”

Accordingly, we will “by definition” still be at war in these countries

without the President having to come to Congress to make the case for wars

in six foreign countries. Members can authorize large-scale ground, air, and

naval operations through this innocuous section. We have gone from a

required vote of declaration to the adoption of a definition.

As for truly new countries, we have yet again a post hoc process for

inclusion:

“NEW FOREIGN COUNTRIES.—Not later than 48 hours after the

use of military force in a new foreign country pursuant to this joint

resolution, the President shall submit an updated report required by

this paragraph and consult with the appropriate congressional

committees and leadership. Authorization for use of military force

pursuant to this joint resolution in a new foreign country is contingent

upon the reporting to Congress pursuant to this paragraph.”

Congress is again left with the option of a joint resolution countermanding

the inclusion of a new country. This, however, is less than what the Framers

gave Congress: the right (and obligation) to affirmatively approve such wars.

Congress may act on a question that it is required to act on under Article I,

Section 8. That is not a codification but a substitution with less power and

responsibility for members.

 

B. “Associated Forces”

One of the greatest concerns after 9-11 has been the apparent license

given to the United States to attack groups anywhere in the world under the

loosely defined conditions of prior AUMFs. The new legislation would leave

in place the authorization of “necessary and appropriate force” against

certain non-state groups and departs from the past open-ended authorization

wars, members eagerly passed it. It notably went as far as to approve “all

necessary force” with no termination date. Not surprisingly, it was then used

for war against “nations” deemed to be harboring targeted groups. Under the

new authorization, targeted groups would not include a “sovereign state.”

The specificity however is illusory. For example, a president can include

new “associated forces” as well as new countries unless Congress passes a

bill to specifically prevent it. The bill essentially places a specific list of

authorized targets in a sea of ambiguity. Take Section Five. It appears to

offer a concrete list of designated forces including (a) Al Qaeda in the

Arabian Peninsula, (b) Al Shabaab, (c) Al Qaeda in Syria (including Al

Nusrah Front), (d) the Haqqani Network, and (e) Al Qaeda in the Islamic

Mahgreb (AQIM). That would seem to correct the endlessly expanding list

of groups under the prior AUMFs. However, the Congress would then add

the following:

“(2) DESIGNATION.—Not later than 30 calendar days after the date

of the enactment of this joint resolution, the President shall designate

all organizations, persons, or forces other than those listed in

paragraph (1) that the President has determined are associated forces

covered by the authorization for use of military force provided by

section 3(a) of this joint resolution by submitting to the appropriate

congressional committees and leadership a report listing all such

associated forces.”

Thus, the list constitutes only the initial designations on a list to be

supplemented unilaterally by the President. What is curious is that the

window for the initial expansion is just 30 days after enactment. Why?

Rather than demand a full initial list to be submitted, the law allows a shorter

list to be voted on with the ability to then expand the list after the matter is

removed from the public debate. However, that is not nearly as worrisome as

what follows:

“(3) NEW ASSOCIATED FORCE.—Not later than 48 hours after the

President determines that a new organization, person, or force is an

associated force covered by the authorization for use of military force

provided by section 3(a) of this joint resolution, the President shall

designate such organization, person, or force as an associated force by

submitting a report to the appropriate congressional committees and

leadership.”

Thus, the initial listing is largely irrelevant as a guarantee of specific

authorizations. It leaves the appearance of specific authorizations but then

allows the President to unilaterally add new groups to the list. As discussed

below, this misleading structure is then coupled to an ex postprovision

allowing for congressional action if they disagree with the President. Given

the ever changing movement of these groups, the initial list is likely to be

meaningless. Moreover, past administrations have shown little restraint in

adding groups to the list of targets under the most tangential connections to

stated AUMF conditions. This law removes the need for pretense in past

efforts to tie groups to Al Qaeda or other authorized targets. The President

may simply add the groups to the list knowing that few politicians will have

the temerity to question the inclusion of an alleged terrorist group.

The proposed AUMF codifies the rule that it is better to ask for

forgiveness than permission. It is highly unlikely that politicians will vote to

specifically remove the name of an alleged terrorist group from an

authorization list. Even without adding new foreign states to the list, the

AUMF still allows for attacks on foreign territory of “associated forces”

located within those countries. Under international law, such attacks

committed with the approval of a sovereign nation is considered an act of

war absent narrow exceptions. The protections therefore are practically

meaningless. Congress and the White House have previously shown a

disinclination to declare wars against other nations in favor of basing attacks

on groups within the territory of those nations.

 

C. The Shift From Ex Ante To Ex Post Action

The most disturbing element in the new AUMF is the authority of a

president to add new targets or expand the scope of the AUMF at his sole

discretion – requiring Congress to pass a bill later if it wants to preserve the

original scope passed in the AUMF. It is the final abandonment of the

structure expressly set into place in the Constitution by the Framers. The

Congress first abandoned the express requirement of a declaration of war. It

then abandoned the need for specific authorizations of force in favor of

broad categories of possible enemies. Now it is dispensing with the need for

any prior authorizations to attack specific targets. The constitutional

requirement for a declaration would be substituted with a requirement that a

president inform Congress after the fact:

“(B) NEW FOREIGN COUNTRIES.—Not later than 48 hours after

the use of military force in a new foreign country pursuant to this joint

resolution, the President shall submit an updated report required by

this paragraph and consult with the appropriate congressional

committees and leadership. Authorization for use of military force

pursuant to this joint resolution in a new foreign country is contingent

upon the reporting to Congress pursuant to this paragraph.”

Members are fully aware that, even if a majority of members could be

found to oppose a war in another country, it is highly unlikely that they

could muster a veto-proof majority. The Corker-Kaine proposal achieves the

long-sought goal of members to remove themselves from responsibility over

war. These belated votes allow for members to register what are effectively

symbolic votes while being able to claim that they had little real voice – or

responsibility – in a war that goes badly. It would not only constructively

repeal the War Powers Resolution but also Article I, Section 8. In so doing,

it allows for endless war and zero accountability.

This adoption of an ex post role for Congress is made all the more

serious by realities of modern budget practices. It is now routine for

Congress to approve billions of largely unrestricted funds (beyond broad

purposes of defense) to the Defense Department and other agencies. Indeed,

when I represented both Democratic and Republican members challenging

the Libyan War, we showed how the Administration funded an entire

military campaign by shifting billions in money and equipment without the

need to ask Congress for a dollar. It was a war essentially funded from loose

change owing to the failure of Congress to fully carry out its constitutional

duties over appropriations. President Obama not only said that he alone

would define what constitutes a war but unilaterally funded the war as just

another discretionary expense. Federal appropriations have become so fluid

and discretionary spending so lax that presidents are now more insulated

than ever before from the threat of de-funding. Thus, Congress combined a

failure to shoulder its duties over the declaration of war with a failure to

shoulder its burden over appropriations. It has given presidents both a blank

check to launch wars with an actual blank check to fund them.

Clearly, the power of the purse can still be used effectively as a check

on the Executive Branch if Congress were to be inclined to exercise its

inherent authority. Congress needs to be more specific on the use of funds

and reduce the degree to which funds are given for discretionary uses,

particularly during periods of circumvention and tension. However, the

historic failure to exercise greater control over appropriations only magnifies

the dangers over the failure to exercise control over war making. Indeed it

may be inaccurate to call this a “blank check.” Checks usually state the

purpose and require some verification. This is more like constitutional cash.

 

D. Lack of A Sunset Provision

The new AUMF would also dispense with even the need to

reauthorize these sweeping powers. Indeed, members would succeed in this

legislation from having to take any vote at all – a total abandonment of the

role expressly dictated in Article I. Section 4 states:

“(a) PRESIDENTIAL SUBMISSION.—On January 20, 2022, and

again every 4 years thereafter, the President shall submit to Congress

a report regarding the use of military force pursuant to this joint

resolution, which shall include a proposal to repeal, modify, or leave

in place this joint resolution.

(b) EXPEDITED CONGRESSIONAL RECONSIDERATION.—

During the 60-calendar day period beginning on January 20, 2022,

and again every 4 years thereafter, a qualifying resolution to repeal or

modify this joint resolution shall be entitled to expedited

consideration pursuant to section 9 of this joint resolution.”

Thus, rather than simply placing a sunset date that requires affirmative

congressional approval, the legislation would allow for literally endless wars

without congressional action. The onus would be on the President every

four years to seek changes that he or she would prefer. Otherwise, the

Congress is relegated to the right to act every four years or during the 60-day

period starting on January 20, 2022. The new legislation would literally put

our endless war on autopilot. It is final proof that Madison may have been

wrong in his faith that members would fight jealously to protect their

constitutional authority. While Madison hoped in Federalist No. 51 that

“ambition must . . . counteract ambition,” members have shown little

institutional fidelity as they worked toward their own institutional

obsolescence.

 

IV. CONCLUSION

The new AUMF would codify the long-sought desire of Congress to

be a mere pedestrian to the prosecution of wars by the United States. Rather

than seek to amend the Constitution to affirmatively surrender its

institutional authority, members are constructively rewriting Article I,

Section 8 in a more user-friendly form that does not require express

declarations or even reauthorizations. It would combine this abdication of

authority with its long-standing failure to limit the use of appropriated funds.

This blank check therefore will have not only an unstated purpose but an

unstated amount. Under those conditions, we have already had roughly 17

years of war and could just as well have170 more.

I have had the honor of testifying many times in both houses of

Congress. Today, however, I took two of my four children out of school to

come to this hearing. My sons Aidan and Jack are sitting behind me. I felt

that they should be here to watch part of this process because they could

well be asked to pay the ultimate price for wars started under this sweeping

authority. If called, I know that they would do their duty as did their

grandfather, great grandfather, and prior generations of our family in our

wars. The question is whether members of this body will do their duty as

laid out in our Constitution and reject this proposed AUMF.

I thank you again for the honor of appearing today and I am happy to

answer any questions that you might have.

Jonathan Turley
Shapiro Professor of Public Interest Law
George Washington University
2000 H St., N.W.
Washington, D.C. 20052
202-994-7001
jturley@law.gwu.edu

1 See, e.g., Jonathan Turley, Madisonian Tectonics: How Form Follows Function in Constitutional and Architectural Interpretation, 83 GEO. WASH. L. REV. 305 (2015); Jonathan Turley, A Fox in the Hedges: Vermeule’s Vision of Optimized Constitutionalism in a Suboptimal World, 82 U. CHI. L. REV. 517 (2015); Jonathan Turley, Recess Appointments in the Age of Regulation, 93 B.U. L. REV. 1523 (2013); Jonathan Turley, The Rise of the Fourth Branch of Government, WASH. POST (May 24, 2013); see also Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2013 WIS. L. REV. 965 (2013); Pax Militaris: The Feres Doctrine and the Retention of Sovereign Immunity in the Military System of Governance, 71 George Washington Law Review 1-90 (2003); The Military Pocket Republic, 97 Northwestern University Law Review 1-134 (2002); Tribunals and Tribulations: The Antithetical Elements of the Military Justice System in a Madisonian Democracy, 70 George Washington Law Review 649-769 (2002).

2 Congress Wrestles With New War On Terror Authorization, NBC News, April 16, 2018.

3 I have previously testified on the impact of narrow (and in my view unwarranted) standing rules that often place glaring unconstitutional acts beyond the reach of judicial review. See, e.g., United States House of Representatives, House Committee on Science, Space, and Technology, “Affirming Congress’ Constitutional Oversight Responsibilities: Subpoena Authority and Recourse for Failure to Comply with Lawfully Issued Subpoenas,” September 14, 2016; United States House of Representatives, House Judiciary Committee, Regulatory Reform, Commercial and Antitrust Law, “Examining The Allegations of Misconduct of IRS Commissioner John Koskinen” June 22, 2016; United States Senate, Committee on Homeland Security and Governmental Affairs, “The Administrative State: An Examination of Federal Rulemaking,” April 20, 2016; United States House of Representatives, House Judiciary Committee, Regulatory Reform, Commercial and Antitrust Law, “The Chevron Doctrine: Constitutional and Statutory Questions in Judicial Deference to Agencies,” March 15, 2016; United States Senate, Confirmation Hearing For Attorney General Nominee Loretta Lynch, United States Senate Committee on the Judiciary, January 29, 2015; United States House of Representatives, “Authorization to Initiate Litigation for Actions by the President Inconsistent with His Duties Under the Constitution of The United States” Before the H. Comm. On Rules, 113th Cong., July 16, 2014; United States House of Representatives, “Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws” Before the H. Comm. on the Judiciary, 113th Cong., February 26, 2014; United States House of Representatives, The President’s Constitutional Duty to Faithfully Execute the Laws Before the H. Comm. on the Judiciary, 113th Cong., December 2, 2013; United States House of Representatives, Committee on the Judiciary, “Executive Overreach: The President’s Unprecedented “Recess” Appointments,” February 15, 2012.

4 WILLIAM SHAKESPEARE, MACBETH, act 5, sc. 5 (Barbara A. Mowat & Paul Werstine eds. 1992)

5 The Records of the Federal Convention of 1787 318-19 (Max Farrand ed., rev. ed. 1966).

6 The Records of the Federal Convention of 1787 65-66 (Max Farrand ed., rev. ed. 1966).

7 2 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787, at 528 (1836).

8 Letter from James Madison to Thomas Jefferson (Apr. 2, 1798), in 6 The Writings of James Madison 311, 312 (Gaillard Hunt ed., 1906).

9 Letter from Thomas Jefferson to James Madison (Sept 6, 1789), in Julian P. Boyd, ed, 15 The Papers of Thomas Jefferson 392, 397 (Princeton 1958).

10 THE FEDERALIST No. 69, supra, at 448 (Alexander Hamilton)

11 JAMES MADISON, Letters of Helvidius (Aug.-Sept. 1793), in6 THE WRITINGS OF JAMES MADISON 174 (Gaillard Hunt ed., 1906).

12 An Act More Effectively To Protect The Commerce and Coasts of the United States, ch. 48, 1 Stat. 561 (1798).

13 Id.

14 James Madison, Message to the Senate and House of Representatives (June 1, 1812), in 2 A Compilation of the Messages and Papers of the Presidents 484, 489-90 (James D. Richardson ed., 1897)

15 Letter from President George Washington to Gov. William Moultrie (Aug. 28, 1793), in 33 The Writings of George Washington 73, 73 (John C. Fitzpatrick ed., 1940).

16 The continued failure of self-professed textualists in Congress to follow the language of Article I, Section 8 remains a long-standing glaring and troublesome conflict. I have written about this disconnect for years. See Jonathan Turley, How Presidents Start Wars Military History Magazine (Cover feature story), July/August 2007, at 1; see also Jonathan Turley, Textualists and Originalists Are Again AWOL in Wars on Syria and Yemen, The Hill, April 1, 2017; Jonathan Turley, War – What it is Good For, USA Today, February 15, 2007, at 13A; Jonathan Turley, Can Congress Stop the War?, USA Today, January 18, 2007, at 13A Jonathan Turley, A Check on Wartime Power, The National Law Journal, March 7, 2005, at 34; Jonathan Turley, A War Powers Quandary, The Los Angeles Times, December 21, 2001, at A19; Jonathan Turley, Cries of “War” Stumble Over the Law, The Los Angeles Times, Sept. 13, 2001, at A2l.

17 My testimony focuses on the separation of powers issues and Article 1, Section 8 implications of the new AUMF. There are, however, additional serious flaws in the legislation, including the potential for tremendous abuse in the detention of both citizens and non-citizens. Section 10, entitled “Conforming Amendment,” would by effect expand the scope of the National Defense Authorization Act for Fiscal Year 2012 (NDAA). This includes the NDAA’s controversial indefinite detention provision. There is a real question as to whether the sweeping language of this AUMF in combination if the NDAA could be used to hold citizens indefinitely, though such an abuse would hopefully trigger a challenge in the courts.