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Tishwash:  The U.S. Senate repealed Iraq war authorizations a year ago. In the House, they’re frozen.

By: Jennifer Shutt - March 21, 2024

 U.S. House Republican leaders have spent the last year holding up a broadly bipartisan, Senate-approved bill that would repeal the authorizations for use of military force from the 1990s and early 2000s that were intended for the wars in Iraq.

The Senate approved the legislation following a 66-30 vote last March, but it has remained stalled in the House ever since, despite broad support from conservative Republicans, centrist lawmakers and left-leaning Democrats in that chamber.

Authorizations for Use of Military Force, while not formal declarations of war, have become the more common way for Congress to authorize when and where the president as commander-in-chief can send U.S. troops into conflict.

Leaving an AUMF on the books, especially decades after lawmakers originally approved it, could provide an avenue for the president to send troops into war or engage in attacks that haven’t been debated and approved by lawmakers on behalf of the public, analysts and lawmakers warn.

In this case, however, emerging wars and armed conflicts in the Middle East have changed the tone of the debate about removing two Iraq AUMFs from the ledger.

Oklahoma Republican Rep. Tom Cole, one of the bill’s original co-sponsors, said in a brief interview with States Newsroom in mid-March there “hasn’t been a lot of oxygen” for the repeal bill to move through the House.

Cole, chairman of the Rules Committee, said he “hopes” leadership will see the bill warrants an up-or-down floor vote later this year.

“We ought to be looking for some things we can agree on on both sides and this is certainly one of them,” Cole said. “I think it’d get a good vote. So I’ll probably bring it up once we get through this period of time with the speaker and majority leader, and see if they’ve got any interest in it.”

The House bill to repeal the Iraq war AUMFs, which is a companion to the Senate-passed bill, has 71 co-sponsors that span the political spectrum and represent 30 states, showing the legislation could have the support needed to pass on an up-or-down vote.

Part of the slowdown, Cole said, is that the House Foreign Affairs Committee wants to take a different approach than what’s in the Senate-passed bill.

‘Repeal and replace’

House Foreign Affairs Chairman Michael McCaul, a Texas Republican, said during a hearing in September that his preference would be for Congress “to repeal and replace all the AUMFs with a new, more limited authorization scope to the terror threats that we face today.”

That process would include repealing the AUMF that Congress approved following the 9/11 terrorist attacks that has given several presidents broad authority to conduct military actions against terrorist organizations around the globe.

An entirely new AUMF would not provide any authority for U.S. troops to occupy a country or for American taxpayers to reconstruct it, and it would include a sunset date “so that Congress is required to review and reauthorize more regularly,” McCaul said during that hearing.

“Doing this is hard and that’s why we haven’t done it in 22 years,” McCaul said at the time. “To succeed, a new AUMF requires bipartisan, bicameral and presidential support, and it will require us to answer tough questions, such as which terrorist organizations should be covered.”

New York Democratic Rep. Gregory Meeks, ranking member on the committee, said during the hearing he believed both parties could agree that “we need to have this debate and we need Congress to reassert its proper authority over the power to declare war under the Constitution.”

“The time to pass repeal and replace of the 2001 AUMF legislation is now long overdue,” Meeks added. “The American people elected us to make tough decisions, not duck hard questions by ceding our constitutional authority over the executive branch.”

The House committee, however, hasn’t released its own bill to address the AUMFs in the six months since the hearing.

That leaves the Senate-approved bill and the identical House version as the most likely option to be enacted during an election year.

Hostilities in Middle East

Virginia Democratic Sen. Tim Kaine, co-sponsor of the Senate version of the bill, said during a brief interview with State Newsroom that conflicts throughout the Middle East have “complicated” discussions about moving the measure through the House.

“My colleagues still want to do it, but I frankly think the increased pace of hostilities in the Middle East has complicated it — even though there’s nothing about Iraq that is related to these,” Kaine said.

The change in speaker of the House has also altered the original plan for debate and a vote in that chamber.

“The speaker had made a commitment that he would bring the bill up for a vote. They sacked the speaker,” Kaine said, referring to former Speaker Kevin McCarthy of California. “So it’s kind of back to square one with the new speaker.”

The current slate of House GOP leaders has so far shied away from moving the issue forward, possibly because the current team all voted against a similar bill that was brought to the floor in June 2021.

Speaker Mike Johnson of Louisiana, Majority Leader Steve Scalise of Louisiana, Republican Whip Tom Emmer of Minnesota and Conference Chair Elise Stefanik of New York all voted against a bill to repeal the 2002 Iraq war authorization for use of military force, or AUMF,  that passed that chamber on a 268-161 vote.

Indiana’s Young says effort should be made

Indiana Republican Sen. Todd Young, co-sponsor of the stalled Senate legislation, said during an interview with States Newsroom it would be “challenging” to move the bill forward in the House now, but said he believes lawmakers “should absolutely make an effort to get a vote.”

Young said conflicts throughout that region have changed the dynamics around approving the AUMF repeal bill, though that should not lead lawmakers to step back from having complicated conversations about when and how the U.S. military uses force.

“Here we are with members of Congress, who are notoriously risk-averse, attempting to deal with a multi-front crisis — Ukraine, Indo-Pacific, Middle East, southern border and so forth,” Young said.

“And there is an incentive to generously read long-standing, but outdated legal authorities in such a way that is highly deferential to the president,” Young added. “Unfortunately, to do so would be a gross abdication of our responsibilities in Congress to not just oversee military activities, but to actually authorize them.”

Young said he’s been asking questions about how the Biden administration is justifying using U.S. troops to counter attacks by Houthis on commercial shipping vessels in the Red Sea.

“I’m very, very concerned that if Congress doesn’t specifically authorize the use of military force in a situation like this, we’re going to end up with another potential Iraq scenario,” Young said. “And none of my constituents want that.”

Virginia Democratic Rep. Abigail Spanberger said in a written statement to States Newsroom that last year she “was proud to see my colleagues in the U.S. Senate vote to remove this outdated war authority from the books — voting to pass a bill that I am proud to help lead in the U.S. House.”

“This authorization is long overdue for repeal, which is why we have voted multiple times to repeal the 2002 AUMF with bipartisan support,” Spanberger said. “The responsibility is now on Speaker Johnson to bring our bipartisan legislation to the floor of the U.S. House and demonstrate that we are serious about reclaiming our fundamental and constitutional authority to make decisions of war and peace.”

Johnson’s office did not return a request for comment on the AUMF repeal legislation.

‘A debate more about the past’

Michael O’Hanlon, senior fellow and director of foreign policy research at the Brookings Institution, said in an interview with States Newsroom that trying to repeal old AUMFs is more of a theoretical than practical discussion right now, possibly slowing down the process.

“It’s almost a debate more about the past than it is about the future,” O’Hanlon said.

The AUMFs for the Iraq wars are “basically obsolete,” though O’Hanlon said, “there could be real value in updating (the 2001 AUMF) to extend it to the kind of groups that have actually been more involved in attacking U.S. forces in the region recently.”

There are also bigger, potentially more consequential debates that Congress should be preparing for, he said.

“The retracting of the Iraq resolutions strikes me as more political theater than anything else on balance,” O’Hanlon said. “The much more consequential issue to me is, what role would Congress play if China ever attacked Taiwan?”

Such a war would not be covered by any of the existing AUMFs that Congress has enacted in recent decades, likely setting off a frenzied debate about war powers between Congress and the president.

“And yet, the debate seems so hung up on the whole legacy of the forever wars in the Middle East that this giant elephant in the room is being ignored,” O’Hanlon said. “And President (Joe) Biden has said four times in the past that if China attacked Taiwan, that we would protect Taiwan. And he’s never acknowledged a role for Congress. To me, that is the real story.”

The U.S. Constitution grants Congress the authority “to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

But presidents have long used AUMFs or declarations of war to justify military operations that might not have been expected or intended when Congress approved the measures.

“The landmark legislation on this in some ways was the War Powers Act of 1973, which was out of frustration with Vietnam, where Congress had just passed one little resolution about a small exchange of gunfire in 1964 and it wound up being used to justify and authorize the entire Vietnam War,” O’Hanlon said. “And, you know, 56,000 American dead later, Congress tried to be more assertive.”

In the decades since the legislation was approved, O’Hanlon said, there has been a recurring tug-of-war between the president as commander-in-chief and legislative branch about when and how the U.S. military can use force.

“There’s a long history of Congress, trying to have some influence but not really always wanting to declare war, not always feeling it’s realistic to reach that standard,” O’Hanlon said. “And yet not wanting to let the president just do whatever he wants.”  link