[Editors’ note: At the one-year mark of the Biden administration, Just Security invited authors of the Good Governance Papers – originally published in October 2020 – to provide brief updates on their Papers, which explored actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For 2022, authors were invited to evaluate the Biden administration and/or Congress and, where applicable, to provide additional recommendations. For more information, please read the introductions to the original series and the update series.]

This article discusses issues and recommendations originally outlined in Good Governance Paper No. 14: War Powers Reform.

Since we published Good Governance Paper No. 14 in October 2020, there has been serious momentum for war powers reform. The Biden administration has shown little inclination to take initiative, but Congress is a different story. 

Although there are not yet enough votes in either chamber to enact meaningful reform, champions have emerged across the aisle and in both the House and Senate, and they have taken noteworthy steps. In March, both the House Rules and Foreign Affairs Committees held highly substantive hearings on prospects for reform. (Tess testified at the former.) Then, as we wrote in July of last year, the “most promising war powers reform legislation in decades” was introduced in the Senate as part of the National Security Powers Act of 2021 (NSPA). That bill, introduced by Senators Chris Murphy (D-Conn.), Mike Lee (R-Utah), and Bernie Sanders (I-Vt.), also now has a House companion, the National Security Reform and Accountability Act of 2021 (NSRAA), introduced by Reps. James McGovern (D-MA) and Peter Meijer (R-MI) (with 12 co-sponsors).

These bipartisan bills don’t tinker around the edges of the current War Powers Resolution (WPR) — they aim to flip the script, recouping power that Congress has ceded to the executive branch in several constructive ways. Although there are a few differences between the two bills, both reflect the major recommendations we made in this series, and would roll back decades of self-serving executive branch interpretations that have eroded congressional checks and balances on war-making powers. Among other reforms, both bills: 

  • include a clear definition of the WPR’s key term “hostilities,” which, as we previously wrote, wouldensure Presidents are reporting introductions of U.S. armed forces into potentially significant situations, and terminating introductions of U.S. forces in a greater range of situations more in keeping with Congress’ initial intent”
  • shorten the WPR’s current 60-day “termination clock,” ​removing “the temptation for the Executive Branch to seek a quick, unauthorized win” (as we described it back in 2020) and creating further incentives for the president to consult meaningfully with Congress before getting the United States involved in hostilities; 
  • increase the quality of reporting to Congress by the executive branch to ensure “reporting is more than a box-ticking exercise,” thereby enabling Congress to take more informed votes; and 
  • institute an automatic funds cut-off at the expiration of the termination clock to create a strong “remedy for non-compliance (defunding) that the current statute lacks.” 

Both bills also set parameters for  future authorizations for the use of force, including that they will include sunset provisions to prevent presidents from conducting multi-decade wars under increasingly stale authorities (as has been the case with the 2001 Authorization for Use of Military Force). By requiring members of Congress to take more frequent votes for wars being fought in the name of the American people, the House and Senate bills would both promote greater public debate about the costs and benefits of war, higher levels of political accountability, and greater prudence in the use of military force.

The first year of the Biden administration also illustrated why reform is still needed. Although the administration brought 20 years of ground operations in Afghanistan to an end, the risk that the United States could slide into hugely consequential new wars without congressional approval loomed large, with the Biden administration claiming the unilateral authority to strike “Iran-backed militias” in Iraq and Syria, ostensibly to defend against further attacks on U.S. troops stationed in the region. Whether the Biden administration would claim that this authority extends to strikes against actual Iranian assets or targets on Iranian territory is unclear. In theory, executive branch legal lore recognizes limits on wars anticipated to be of sufficient nature, scope, and duration that Congress must authorize them. But executive branch lawyers have determined that even major bombing campaigns and strikes against nation-states that provoked escalatory responses fell below the threshold necessary for the president to seek congressional authorization. 

Whether or not one is a fan of the Biden administration’s foreign policy, the purpose of such reform is not to constrain any single president. Rather, it is to restore constitutional checks and balances so that it matters less who is president, at least as far as momentous decisions about war and peace are concerned. Without this reform, the default is perilously close to the “one person decides” model that Jack Goldsmith darkly outlined during the Trump administration. 

That is why it will be important to keep pushing. Despite a failed effort to include these WPR reforms in this year’s National Defense Authorization Act (NDAA), there are reasonable prospects for trying again in the next NDAA. Neither of these bills is a panacea. But both would dramatically improve the status quo. And enacting even a subset of their reforms as part of a future must-pass legislative vehicle, if not before, would be a clear step in the right direction.