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Forget War Powers, Here's What Congress Should Do If It Really Wants to Take Its Power Back

Speaker of the House Nancy Pelosi (D-Calif.) holds her weekly press conference in the Capitol on Jan. 10, 2019. (Bill Clark/CQ Roll Call via AP Images)

On Thursday, Congress will vote on a war powers resolution ostensibly to limit the president’s ability to make military decisions but really as a political virtue-signaling exercise against President Donald Trump, to chide him for the strike that killed Quds Force leader Qasem Soleimani. But I am sympathetic to claims that Congress needs to wrest back some of its constitutional prerogatives from the Executive Branch. In fact, I insist on the idea.

There is a strong case to be made that the Authorization for the Use of Military Force (AUMF) against terrorism is too broad, but an even stronger case should be made that the administrative state effectively wrests the legislative power out of the hands of Congress.

You see, the Founding Fathers designed Congress to be the most powerful of the federal branches. Article I deals with Congress, while the president is relegated to Article II. Congress has the power of the purse, the power to declare war, and the ultimate check on the president — impeachment. But, thanks to the “Progressive” movement, Congress delegated its power to make law to various administrative agencies, which in turn produce reams and reams of regulations.

Under Trump, the Federal Register published 2,964 regulations in 2019 — and that’s a record low.

The president has the ultimate authority over administrative agencies, although many of them act largely independent of his authority. The Consumer Financial Protection Bureau (CFPB) — of which Elizabeth Warren boasts as one of her children — is the most insulated, and likely unconstitutional in many ways.

Luckily, Congress has a way to check this abuse of power: the Regulations from the Executive In Need of Scrutiny (REINS) Act, H.R. 3972 in the current House. This act would require major regulations to be approved by Congress, just like legislation. Any major rule — one that would have an annual effect of $100 million or more on the economy; results in major costs for consumers, industries, government agencies, or geographic regions; or adverse effects on competition, employment, investment, or productivity — would have to clear major hurdles.

This one bill would return immense power to Congress — power that the Constitution expressly delegated to the Legislative Branch.

This is not to say that war powers are unimportant. The United States cannot go to war unless Congress votes for it. But here’s the thing: the president is the commander-in-chief, which means he has the authority to protect U.S. troops. And there’s another catch when it comes to Democrats right now: the AUMF authorizes a broad swath of anti-terror actions.

Democrats may argue that Trump’s strike to kill Soleimani was likely to cause war. Yet if Pentagon intelligence is correct that Soleimani helped to orchestrate the siege of the U.S. Embassy in Baghdad — a claim that makes immense sense given Soleimani’s leadership of the Quds Force and the fact that the Iraqi militias that stormed the embassy were backed by Iran — this arguably started a war already.

Thankfully, Trump’s announcement on Wednesday pointed in the direction of deescalation. While Iran launched missiles against Iraqi bases housing U.S. troops, it seems to have used substandard missiles. The Islamic Republic needs to seem tough on America to remain in power, but it cannot hope to win a real war against the U.S.

Sen. Mike Lee (R-Utah) threw a wrench into the Soleimani strike by calling himself “unsatisfied” with the “legal, factual, and moral justification for the attack” in the Pentagon’s intelligence briefing, which he called “probably the worst briefing I’ve ever seen.”

While the briefing may have been horrible, Trump’s strike against Soleimani may still be justified.

House Speaker Nancy Pelosi’s war powers resolution does not create new law, which means it is effectively toothless. Congress already has the power to declare war, and it could reverse the AUMF — but it will not.

If Congress really wants to take power away from the president and the Executive Branch, it should consider the REINS Act instead.

Follow Tyler O’Neil, the author of this article, on Twitter at @Tyler2ONeil.