As Congress readies for votes on the must-pass National Defense Authorization Act (NDAA), several amendments related to authorizations for use of military force (AUMFs) merit attention as easy “yes” votes that could help restore Congress’ congressional authority over when to take the nation to war. Three of these are simply long-overdue good war powers hygiene, repealing old “zombie” AUMFs (as Rep. Peter Meijer (R-MI) has coined them) that are not relied on for any current U.S. operations but could be susceptible to abuse. These are Rep. Barbara Lee’s (D-CA) 2002 AUMF repeal amendment (with bipartisan co-sponsors), Rep. Abigail Spanberger’s (D-VA) repeal of the 1991 AUMF, and Rep. Meijer’s repeal of the 1957 AUMF. Another bipartisan amendment, co-sponsored by Reps. Lee and Meijer, takes the small but important step of declaring the “sense of Congress” that any new AUMF should include a date on which the authorization is terminated unless reauthorized by Congress, a.k.a. a sunset.
While settling on the details of any new AUMF will be challenging, the bipartisan sunset amendment should be another easy yes vote for members, and the Biden administration should support it. The full text of the sense of Congress provisions are as follows:
(1) the inclusion of a sunset provision or reauthorization requirement in authorizations for use of military force is critical to ensuring Congress’s exercise of its constitutional duty to declare war; and
(2) any joint resolution enacted to authorize the introduction of United States forces into hostilities or into situations where there is a serious risk of hostilities should include a sunset provision setting forth a date certain for the termination of the authorization for the use of such forces absent the enactment of a subsequent specific statutory authorization for such use of the United States forces.
Making good on this sense of Congress in any future AUMF would go a long way toward fixing a pernicious problem that has developed over the past few decades, as old AUMFs have been construed to authorize wars against enemies that did not exist at the time of their enactment and about which Congress never deliberated. A sunset clause guards against that kind of misuse and abuse. It should not be understood as an “off switch,” but rather as a vote forcing mechanism. By shifting the default away from forever authorizations, it ensures that the peoples’ representatives affirmatively debate and decide whether the United States should be at war, and against whom, as the Constitution intended. And it ensures that our troops doing the fighting are foregrounded in these deliberations.
Who supports sunsets?
First and foremost, Congress itself has supported sunsets by enacting them into law in roughly one-third of past AUMFs and declarations of war. Recent serious proposals for new AUMFs have also included sunsets, including those supported, and authored, by the executive branch: the ISIL-specific draft AUMF President Obama sent to Congress in 2015 included a three-year sunset clause.
Second, former senior officials serving in administrations of both political parties support sunsets. In May 2017, former CIA and Department of Defense General Counsel Stephen Preston advocated that a sunset clause shows the United States is “committed to the fight” and “committed to our democratic institutions.” On this score, Heather Brandon-Smith’s overview of exchanges on the value of a sunset provision in a July 2017 House Foreign Affairs Committee hearing titled “Authorization for the Use of Force and Current Terrorist Threats” is worth quoting in full:
The witnesses were repeatedly asked whether a sunset provision should be included in a new AUMF, with many members of Congress—on both sides of the aisle—agreeing on the merits of including a sunset. Both [former Attorney General Michael] Mukasey and [former National Counterterrorism Center Director Matthew] Olsen advocated in favor of sunsets… “As experts across the political spectrum have explained,” said Olsen, “a sunset does not end the war. Rather, a sunset signals to our partners and adversaries that the U.S. is committed to using the force required to combat the current threats we face, even as we sustain the fight for as long as it takes.”
Mukasey, who noted in his written statement that he does not generally favor sunsets in the intelligence gathering or counterterrorism authorities, advocated for a sunset in a new AUMF. “I favor a sunset provision,” he said. “I’ve favored reconsidering the  AUMF for years.”
More recently, in March 2021, former Republican and Democratic administration senior lawyers at a House Rules Committee hearing on war powers (in which I testified), agreed on the need to include sunset provisions in future AUMFs. (Ryan Goodman, Steve Pomper, Steve Vladeck and I also supported including a three-year sunset in our set of principles for any new AUMF in 2021).
Third, leading experts and former senior officials who have considered how new AUMFs should be structured have long endorsed inclusion of sunsets. A set of principles for a new AUMF from leading legal experts Rosa Brooks, Sarah Cleveland, Jen Daskal, Walter Dellinger, Ryan Goodman, Harold Hongju Koh, Marty Lederman, and Steve Vladeck published in Just Security in November 2014 endorsed a sunset. They explained that sunsets, along with other constraints in the proposal, avoid unnecessary wars and promote democratic accountability. Eight years later, these are even more imperative goals.
Another set of principles for a new AUMF from Ben Wittes, Bobby Chesney, Jack Goldsmith, and Matt Waxman at Lawfare, coincidentally released on the same day in Nov. 2014, explicitly endorsed a three-year sunset to “forc[e] Congress to make an affirmative decision as to whether, and how, it wants its blessing to continue.” Indeed, inclusion of a sunset is seen as a key point of consensus among these leading proposals for any new AUMF.
But would a sunset help the enemy or hamstring the executive branch?
At a House Foreign Affairs Committee hearing last March, an administration witness surprisingly did not support the inclusion of sunsets in AUMFs because “we do not want to say to our adversaries at some date if they just hold out they can do whatever they please.” The Biden administration should shift that position – and embrace Reps. Lee and Meijer’s amendment – for at least three reasons.
First, there’s simply no reason to believe a congressional reauthorization requirement, or sunset, would send such a signal to an adversary. It is doubtful that adversaries in foreign countries – often primarily engaged against non-U.S. enemies – are at all concerned with U.S. domestic law authorizations. But even if we were to try to glean external signals from a domestic reauthorization requirement, as former State Department Legal Adviser Harold Hongju Koh said in 2015, “a sunset is not a repeal; it need not even be read as a proposal to repeal in the future…. A sunset is simply a shared congressional-executive agreement to reassess the situation together as a nation.”
If anything, a reauthorization requirement shows that Congress is paying attention to the war it has authorized and will continue to do so. And notwithstanding legitimate concerns of partisan Capitol Hill gridlock, Congress manages to pass NDAAs, budgets, and other high-stakes legislation when needed.
Second, U.S. political leaders and the national security institutions that support them make decisions about the scale of U.S. involvement within and outside of conflict zones based on a range of factors, including the severity and immediacy of the threat, resource constraints, and the willingness and reliability of partners on the ground to act. A brief look at the past three presidential administrations underscores this point: it was not the expiration of an AUMF that caused President Biden to withdraw U.S. forces from Afghanistan, Trump to announce withdrawal from Syria (before reversing course), or Obama to withdraw from President George W. Bush’s war in Iraq.
It bears emphasizing here that in any true emergency situation, under threat of an imminent armed attack or in a situation where U.S. nationals are in imminent peril abroad, the president may rely on independent authority in Art. II of the Constitution to act quickly (as most presidents in our recent history have done), regardless of the existence of any congressional authorization.
Third, and arguably far more important than any potential signal that might be sent to a foreign adversary, a reauthorization requirement sends a very real and important signal to our own troops: Congress supports the war effort you are engaged in and has taken a tough vote to authorize it. And if you are brave enough to fight, we are brave enough to vote.
A reauthorization requirement also signals – both internally and externally – a commitment to our own democratic processes. That commitment is now more important than ever for members of Congress and the executive branch to embrace.