The Irresponsible Institutional Politics of an “Election Year”

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

When I sat down to write this post, I had initially planned to offer something of a preview of the major national security policy issues likely to come before Congress in the year to come. Then I read this piece from Niels Lesniewski on Roll Call’s “WGDB” blog about comments made by Senate Majority Leader Mitch McConnell last month concerning why Congress won’t vote on a use-of-force authorization for ISIL in 2016. Here’s the highlight:

“I would not want to saddle the next president with a prescriptive AUMF. We’re going to have a new president a year from now,” McConnell continued. “He or she may have a different view about the way to deal with ISIS and that part of the world. I don’t think we ought to be passing an AUMF as the president exits the stage when he already thinks he has the authority to do what he’s willing to do now.”

Contrast that with what Senator McConnell told CNN’s Dana Bash at roughly the same point in December 2014: 

“It would be even better if the President asked us for what he wants, but we’re not going to wait forever,” McConnell said.

“We’re certainly going to need to use force, there’s no question about it. They’re beheading Americans and posting it on the Internet. They’re a serious threat to our national security. And we’re going to have to act,” he said.

In other words, “we really should’ve passed something in 2015, but now that it’s an election year, we’re just going to chillax.” Although Senator McConnell was speaking only about an AUMF for ISIL, there’s every reason to think that this mentality will more generally describe Congress’s approach to national security policy in the year to come.

Senator McConnell’s comments largely speak for themselves (and betray his complete failure of leadership on the AUMF question). Nevertheless, I think it’s worth reflecting on his “but it’s an election year” approach to national security policy, because, as much as in any other area, I just don’t see how that makes any sense from a separation of powers perspective. Here are three separate reasons why:

  1. The Election as a Referendum. First, and perhaps most significantly, elections are supposed to serve as a referendum on the political branches’ actions. Waiting until after the election to enact a policy that is arguably needed now is, in many ways, antidemocratic, as it removes any real chance for the policy initiative at issue to become a rallying point at the ballot box. Imagine if the scope of the conflict Congress has expressly authorized against ISIL became a campaign issue… We might actually learn something (at least in the Senate and those few House districts that are not excessively gerrymandered to protect incumbents).
  2. The Myth of Tying the Next President’s Hands. Second, waiting until after the election only perpetuates the increasing drift of separated war powers that Jack Goldsmith and others have documented elsewhere — where Congress’s inaction in the face of a President’s debatable claims to lawful use-of-force authority only invites additional unilateral presidential warmaking in the future. Senator McConnell’s only nod to this separation-of-powers concern, which has been widely shared, is his suggestion that “I would not want to saddle the next president with a prescriptive AUMF.” But the whole point of our constitutional system is that, if the next President feels “saddled,” he or she can pursue statutory reforms — which, Senator McConnell seems to be suggesting, the next Congress would be only too happy to pursue. (Indeed, imagine if Congress had refused to enact TARP in September 2008 because it didn’t want to risk tying the next President’s hands…) Of course, a lot of this is simply Senator McConnell playing politics where the stakes just aren’t as high as they were with TARP. But whatever rhetorical benefit he may be reaping in the short term (and it’s not even clear to me that there is one) comes at the increasing expense of the long-term institutional authority and credibility of Congress vis-à-vis the war powers.
  3. Constitutional Dictatorship. Finally, related to but distinct from the drift of the war powers is the broader concern about constitutional dictatorship — a term Clinton Rossiter famously used to describe the first 11 weeks of President Lincoln’s tenure, during which he was trying to suppress a rebellion while Congress was not in session. Lincoln, of course, called Congress into session — and Congress subsequently ratified most (if not all) of his unilateral actions taken in the spring of 1861, but much of Lincoln’s legal authority turned not on the absence of legislation, but on the absence of Congress. For Congress to be in session and to simply refuse to vote, one way or the other, on war powers the President is exercising (to a large degree openly), is for Congress to invite future presidents not just to engage in greater unilateral warmaking, but in greater unilateral action during wartime, writ large. It would be one thing if Congress wasn’t acting because it was convinced the President would veto any legislation (thereby exposing Congress’s institutional weakness). But here, the President has repeatedly suggested that he would welcome a bill, has drafted one of his own, and has supported drafts provided by various members. Waiting for the next president in the face of those circumstances is about as dangerous an abdication of the legislature’s constitutional authority as I can think of.

“There may be a time for an AUMF,” Senator McConnell told Roll Call. But “I don’t think it’s now.” In this regard, Senator McConnell and I are in complete agreement. The time was the fall of 2014. But 2014 was an election year… 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).