One GOP Hawk’s Case against Unchecked Presidential War Powers

I n the early days of the Biden administration, progressive lawmakers have renewed a push to curtail the president’s powers to unilaterally wage war — but they no longer have a monopoly on this campaign.

Conservatives are getting involved, too.

“I don’t see any contradiction between being on the hawkish side of the spectrum, or being a U.S. primacist, and still insisting that the Constitution obtain, particularly in matters of war,” Representative Mike Gallagher told National Review earlier this week. “In fact, I think it undermines American national security not to have congressional buy-in to what we’re doing.”

Lawmakers are focused on repealing and otherwise revising the laws that have authorized the use of military force abroad. Ahead of a pivotal vote to repeal the 2002 resolution that authorized the invasion of Iraq, Gallagher, a Wisconsin Republican who served in Iraq, discussed his thoughts on how to reassert Congress’s role in military conflicts. While some lawmakers warn that repealing the 2002 authorization would leave a gap in the president’s ability to respond to Iranian provocations, Gallagher sees things differently.

He recently co-sponsored a separate war-powers measure that would repeal the 2002 authorization, in addition to military authorizations passed in 1991 and 1957 to authorize the Gulf War and a potential Cold War-era military commitment in the Middle East, respectively. The latter two resolutions aren’t often cited, but since they remain on the books, Gallagher wants to strike them as a matter of “good constitutional hygiene.”

In pushing for a repeal of the Iraq War authorization, which has been cited for military action ranging from the anti-ISIS campaign to the killing of Iranian general Qassem Soleimani, Gallagher finds himself with strange bedfellows. Not only are two of his co-sponsors Democratic representatives Abigail Spanberger and Jared Golden, but his push to terminate the 2002 resolution puts him on the same side as Representative Barbara Lee, the only member of Congress who voted against the expansive 2001 force authorization after the 9/11 attacks. That established the legal domestic justification for much of the ensuing Global War on Terror.

Ending so-called forever wars has become a popular priority among some on both sides of the aisle. Previous attempts to repeal the 2002 authorization for Iraq and curtail the 2001 AUMF have gone nowhere — until now. Gallagher’s efforts have helped to sketch out the contours of a war-powers-reform agenda for conservatives.

Gallagher doesn’t think that repealing the 2002 AUMF, which authorized the use of force to “defend the national security of the United States against the continuing threat posed by Iraq,” will hamstring the president’s ability to act against foreign threats. He argues the current war authorization, however, is outdated and has been wrongly cited to justify military action in recent years.

Critics of doing away with the resolution point to Iran’s military activity in Iraq, which includes support of militias that recently launched rocket attacks against U.S. positions in the country, including one that led President Biden to order strikes on Iranian-backed militia positions in Syria. (Biden cited the Constitution, not the Iraq AUMF, as legal justification for the move.)

Although Gallagher was supportive of the strike that killed Soleimani in Baghdad last year, he doesn’t believe the 2002 AUMF added anything to the Trump administration’s legal rationale for the move. Asked if it was correct to justify it using the 2002 Iraq resolution, he said, “No, I think that’s illogical,” pointing instead to stronger legal arguments under Article II of the Constitution and the 2001 AUMF.

“Where in the text of the 2002 AUMF do you read authority to kill the head of the Iranian Revolutionary Guard Corps Quds Force? It requires like a magical triple-bank shot that strains credulity. And the critical point is, it’s not like suddenly when you get rid of the 2002 AUMF, we’re not going to be allowed to do what we need to do in the Middle East,” he said.

Charles Stimson, a senior legal fellow at the Heritage Foundation, told National Review that although the Trump administration at various points cited the 2002 Iraq AUMF as justification for certain military activities, the final edition of a congressionally mandated war-powers report didn’t even cite the resolution. “Even the Trump administration — which was very aggressive in going after the bad guys, especially ISIS, and mostly successful in eradicating them — didn’t rely, as a domestic legal matter, on the 2002 AUMF in that war-powers report,” he said, with the caveat that he hasn’t yet seen the unclassified annex.

“But the 2001 AUMF has been the pillar upon which the post 9/11 legal architecture has relied . . . for the most part. And now that we’re out of Iraq, the object and purpose of the 2002 Iraq AUMF has been more than satisfied,” added Stimson, who has had conversations with Gallagher, as well as Senators Tim Kaine and Todd Young, about a similar proposal.

If Congress repeals the 2002 AUMF, Gallagher said he also wants to take a look at reforming the 2001 authorization, calling that the second step to war-powers reform. This could cover including a sunset provision, requiring Congress to renew the law, and requiring stronger reporting requirements. “I see the contours of a compromise, one that could give the hawks like me confidence that we’re still able to defend America, while giving the more isolationist-oriented members of Congress sufficient confidence that Congress will be treated as the dominant branch of government,” he said.

According to Gallagher, this is all about “repairing the damage done to the Constitution by the rise of the imperial presidency and government by executive fiat.” With skepticism of the use of American power abroad on the rise, Gallagher’s position might also make for a more politically durable proposition.