A Fast Track to Nowhere: ‘Expedited Procedures’ and the New AUMF Proposal

By Scott R. Anderson, Molly E. Reynolds
Thursday, April 19, 2018, 9:04 AM

On Monday evening, a bipartisan coalition of senators led by Senate Foreign Relations Committee Chairman Bob Corker (R.-Tenn.) and Sen. Tim Kaine (D.-Va.) released a draft authorization for use of military force—a proposal that, according to the legislation, aims to provide “an updated, transparent, and sustainable statutory basis for counter-terrorism operations.” The proposed 2018 AUMF would revoke the 2001 and 2002 authorizations currently invoked to justify most U.S. counterterrorism operations and set up a sophisticated new framework that promotes greater transparency and carves out a more involved role for Congress.

In this post, however, we take a closer look at the mechanism that serves as the heart—or perhaps the teeth—of this new framework: the “expedited procedures” through which Congress may review certain presidential decisions or even modify or repeal the AUMF itself. By our reading, the real impact of these procedures is more indirectly political than legal. As a technical matter, they do relatively little to change the current balance of power between Congress and the executive branch. For this reason, those concerned about executive overreach in this area may find it difficult to support the bill.

As Bobby Chesney describes in his useful primer, the proposed 2018 AUMF is explicitly designed to maintain the scope of counterterrorism operations currently being pursued under the 2001 AUMF. As most Lawfare readers know, the executive branch has interpreted the 2001 AUMF as authorizing “all necessary and appropriate force” against not only al-Qaeda and the Taliban but also “associated forces” that have joined them as co-belligerents (like al-Shabab in Somalia) and splinter groups that have broken off from al-Qaeda or the Taliban but continue their mission (like the Islamic State). These interpretations—combined with the 2001 AUMF’s lack of any geographic or temporal limitation—have allowed the executive branch to cite the it as authorization for various activities targeting several organizations in a number of different countries over the past seventeen years.

The 2018 AUMF not only codifies many of these interpretations, but it explicitly provides for “uninterrupted authority” in transitioning away from the 2001 AUMF, meaning that any operations that are being currently being pursued under the 2001 AUMF will continue to be authorized. This includes operations that may be more controversial or less well-known, such as the use of force to defend non-state partner forces in Syria from third-party attacks by supporters of the Assad regime. By contrast, while the draft 2018 AUMF would also repeal the 2002 AUMF, it does not guarantee this continuity of operations. That said, the 2002 AUMF—which authorized the U.S. military presence in Iraq for many years—is now cited primarily as supplemental authorization for certain counter-ISIS activities.

The Corker-Kaine proposal also allows the president to continue to define the scope of worldwide counterterrorism operations by expanding activities to new foreign countries and designating new associated forces for targeting. (The bill expands this latter category to encompass those groups that are considered either associated forces or splinter groups under the 2001 AUMF, though it excludes sovereign states.) But the draft legislation also imposes some new limits. At present, when the president decides to expand the use of force to a new region or to target a new associated force, the relevant process occurs entirely within the confines of the executive branch. At times these decisions have even been kept secret, though the Trump administration now reports on them to Congress in classified form. The 2018 AUMF changes this by requiring that the president notify Congress of such decisions within 48 hours and provide a report detailing the executive’s rationale. Congress may then use “expedited procedures” to introduce and consider legislation that would reverse the president’s decision.

This is not the only place in which the draft legislation makes use of these expedited procedures. Unlike the 2001 AUMF, the new proposal sets potential limits on its own duration through what it calls a “quadrennial review” process. Beginning on Jan. 20, 2022, and every four years thereafter—cleverly scheduled to fall one year after the inauguration day for each new presidential term—the president must provide Congress with a report on the activities that the United States is pursuing under the 2018 AUMF and make a recommendation as to whether Congress should repeal, modify, or leave the 2018 AUMF in place. For a period of time, Congress will then be able to use the same basic expedited procedures to vote on legislation either modifying or repealing the 2018 AUMF as it sees fit.

At a minimum, these measures substantially enhance transparency between Congress and the executive branch by requiring the president to provide Congress with information about certain decisions that expand the scope of U.S. counterterrorism operations. They also assign Congress a clear role in such decisions for the first time. Yet as with any other statute, Congress has always had the power to narrow, modify, or repeal the 2001 and 2002 authorizations. To date, such measures have simply lacked the necessary support to overcome the various barriers posed by the U.S. legislative process.

So how do the new expedited procedures make it easier for Congress to exercise this authority? Primarily, they allow members of Congress to force public debate and impose political costs on their peers. They do not, however, substantially ease the path to enacting legislation.

Generally speaking, the expedited procedures remove only a few of the procedural hurdles that legislative proposals normally face. Even then, they apply only for “qualified resolutions” that are narrowly tailored to one of the three purposes described above and introduced within 30 calendar days of the relevant triggering event (such as a report to Congress or the quadrennial review date). Only qualified resolutions arising from the quadrennial review may be amended, and even then only by “relevant amendment[s].” The expedited procedures that apply to qualifying resolutions are themselves only available for 60 calendar days following the triggering event.

Once a qualifying resolution is introduced in the House, whichever committee it is referred to (the draft legislation does not specify) has ten calendar days after the 30-calendar-day period for introducing qualified resolutions has ended to report that resolution to the body. If this does not occur, then the qualified resolution is automatically discharged from committee and placed on the appropriate House calendar. From there onward, however, it remains subject to normal House rules, giving majority-party leaders a great deal of control over when it will be brought to a vote, if at all. (This may reflect the fact that the current draft was written by senators; a House companion measure might address that chamber’s procedures more thoroughly.)

Meanwhile, qualifying resolutions introduced in the Senate will be automatically referred to the Senate Foreign Relations Committee, which similarly has ten days after the end of the 30-calendar-day introduction window to report the resolution out of committee. If that doesn’t happen, the qualified resolution automatically goes on the Senate’s calendar. A senator will then be able to motion to consider the qualified resolution on the floor at any time, though only once per unique item per Congress. Debate on this “motion to proceed” is limited to eight hours, divided evenly between the majority and minority leaders. This makes it easier to force a vote on starting debate by preventing a filibuster on the motion to do so. That said, the underlying qualified resolution itself could still be held up in this way.

As a result, the 2018 AUMF’s expedited procedures are relatively limited in scope. The bill does smooth the path for both floor debate and a procedural vote, which would be more difficult to achieve under the normal procedures of the Senate—particularly if opposed by the majority leadership. But their greater influence is likely to be indirect and political. As we’ve discussed previously, senators can use floor debate to bring much-needed public attention to issues of concern, putting political pressure on the executive branch. And even a procedural vote would require senators to take a public stance on the AUMF, potentially revealing a lack of support for the president’s position or at last providing a means of holding senators accountable for executive branch policies that they facilitate. In this sense, the 2018 AUMF follows in a long tradition of congressional efforts to design procedures that somehow increase the institution’s influence over executive branch actions—one also evident in other recent national security legislation.

But by failing to prevent a filibuster of the underlying resolutions, the 2018 AUMF does not go as far as it could go to ease the passage of the qualifying resolutions at issue. More importantly, it also does nothing to alter the fundamental need to garner two-thirds majorities in both houses in order to override a presidential veto, should the president oppose congressional efforts to limit executive actions abroad. And there’s a good reason for that: “legislative vetoes” and other conditional authorizations that try to circumvent the normal legislative process are generally seen as unconstitutional under the Supreme Court’s 1983 decision in INS v. Chadha.

Early critics have already seized on this point in describing the 2018 AUMF as requiring two-thirds of both houses of Congress to override presidential action. And while this elides the political leverage that the 2018 AUMF’s expedited procedures can provide—and perhaps unduly discounts the possibility that the president will not always choose to exercise the veto—the math is ultimately hard to dispute.

This only underscores the difficulties that Chadha creates for Congress, which are particularly pronounced in the national security space. There are a variety of situations in which Congress may wish to delegate substantial discretion to the executive branch, often due to the executive’s expertise, fact-finding capabilities, or ability to act expeditiously. Yet without the ability to exercise control through measures that do not require presidential signature—the type of arrangement limited by Chadha—Congress’s principal legislative means of reining in the executive’s use of that discretion is to enact new legislation. And, in turn, that legislation will be subject to a presidential veto. Of course, this is something of an oversimplification—Congress can also exercise its oversight capacity, use appropriations riders, and otherwise put political pressure on the executive branch, all of which can yield real policy outcomes. Yet in areas where these mechanisms may not be as effective, Congress is often forced to choose between narrow authorizations that might hinder the president’s policy efforts and broad authorizations that risk irretrievably delegating away much of its formal authority. Furthermore, in the unique context of war powers, there is also a risk that a narrow authorization will encourage the president to make more aggressive claims of unilateral Article II authority, undermining Congress’s authority in a different way. Regardless, those concerned about executive power generally favor narrow authorizations. But Congress often seems to choose broader authorizations, as the sponsors of the 2018 AUMF have done.

Could the 2018 AUMF be tweaked to balance these two approaches, within the limits imposed by Chadha? Yes. One approach would be for Congress to require that at least some element be made subject to actual congressional reauthorization. Of course, some members of Congress may be uncomfortable with this arrangement, perhaps over fears that reauthorizations will be obstructed by recalcitrant senators or made a bargaining chip in broader debates. To address these concerns, the reauthorization requirement for a modified 2018 AUMF could be paired with expedited procedures that grant a renewal measure certain procedural protections.

The clearest candidate for this treatment is the 2018 AUMF’s quadrennial review provision. Both the Obama and Trump administrations have argued that there are good reasons for Congress to give the executive branch substantial discretion over the scope of counterterrorism efforts, not least because the speed with which groups like al-Qaeda and ISIS change their operations often outpaces the deliberately slow and increasingly dysfunctional U.S. legislative process. The sponsors of the proposed AUMF, at least, seems to sympathize with these views, given their efforts to preserve the current scope of operations under the 2001 AUMF and the president’s ability to expand on it (albeit with greater congressional involvement).

But the quadrennial review is different. Nearly every discussion of a new AUMF in recent years has endorsed a “sunset clause” setting limits on its duration, including the failed ISIS AUMF introduced by the Obama administration. And while the Trump administration has opposed such temporal limitations on the grounds that timelines “risk unintentionally emboldening our enemies to outlast us[,]” this argument borders on facetious. The appropriations and authorizations for nearly all our national defense activities occur on an annual basis, and countless other key national security laws operate on similarly fixed time-frames between renewals. There is no compelling reason to believe that periodic reconsideration of an AUMF—particularly on a quadrennial basis—would pose any greater danger.

Inverting the 2018 AUMF’s quadrennial review provision could function roughly as follows. The modified 2018 AUMF would require congressional reauthorization every four years beginning on January 20, 2022. The president would continue to submit a report and make a recommendation when the quadrennial review date arrives. But instead of having the option to introduce a resolution to modify or repeal the AUMF, Congress would use the expedited procedures to move forward with qualified resolutions to reauthorize the AUMF for four more years. Indeed, these procedures could be even more streamlined than those in the current bill, perhaps by limiting debate in the Senate so as to prevent a filibuster, as in related contexts. More aggressive procedures could also be adopted in the House so as to ease the process of securing a vote, which the current expedited procedures do not do.

Regardless of the exact measures pursued, the goal would be to ease the process by which reauthorization could be approved by a simple majority in each chamber of Congress, and guarantee that those who support reauthorization are at least able to force a public debate and vote. If the AUMF nonetheless fails to secure reauthorization in the requisite period, then the 2018 AUMF would expire on Jan. 20 of the following year—after a new Congress would be elected and seated. During this time, the executive branch would be free to wind-down its AUMF-reliant activities, shift them to other authorities, or continue to lobby for reauthorization (or a new AUMF).

While additional details would need to be worked out, this approach—basically a modified sunset clause—would at least loosen the strong grip that the president’s veto authority otherwise gives over the scope and duration of the 2018 AUMF. Moreover, the requirement that Congress exercise more formal authority every four years would likely provide lawmakers with additional leverage in other intervening skirmishes with the executive over associated force and foreign country designations. Indeed, any political pressure brought to bear on these would likely be more effective, as it would be backed up by the threat of a harder reauthorization fight just a few years down the line. Of course, members of Congress who favor expansive presidential authority may resist a measure that would allow a simple majority of senators to limit presidential power. Yet this bloc will have to be reckoned with in the course of almost any effort at AUMF reform.

There is, however, one catch with this use of expedited procedures. As the 2018 AUMF explicitly recognizes, such expedited procedures are—despite being written into statute—exercises of Congress’s rulemaking, not lawmaking, authority, meaning each chamber has the constitutional authority to change them pursuant to their own internal decision-making processes. Like Chadha, this constitutional limitation is unavoidable. But using expedited procedures in support of both continued authorization and limitations on how that authorization is used would at least spread the risk. In this way, a combination of reauthorization requirements and expedited procedures could help facilitate more meaningful congressional influence.

By all appearances, the 2018 AUMF is a good-faith effort at crafting a solution to the real and enduring legal problems underlying many U.S. counterterrorism operations. On nearly every relevant front—transparency, statutory specificity, the role of Congress—it improves on the status quo under the 2001 AUMF. In this sense, its sponsors should be applauded for making a serious effort at the difficult task of developing legislation that not only addresses these issues but might plausibly find enough bipartisan support to be passed into law—a responsibility that too many of their predecessors have neglected.

In the end, however, the 2018 AUMF would largely leave in place the immense authority that the executive branch currently holds over counterterrorism policy. And in this sense, its potential for success may itself pose a problem. The status quo under the 2001 AUMF is immensely problematic, but this makes it subject to legal challenge. Enacting the 2018 AUMF, meanwhile, would set the legal framework for U.S. counterterrorism operations on a far more solid foundation. Opponents of the executive’s expansive use of force abroad may find that the various improvements implemented by the 2018 AUMF are outweighed by the prospect of making the executive branch’s authority in this area more permanent. They may instead hold out hope that legal challenges—however slim the odds—will one day facilitate a broader AUMF rollback, perhaps with the help of a more amenable president and Congress. This will put them in an awkward game of chicken with the Trump administration, which has similarly opposed the 2018 AUMF on the assumption that such challenges will fail and the authority it claims under the 2001 AUMF will remain in place indefinitely.

Perhaps those members of Congress critical of the executive branch’s broad powers under the 2001 AUMF will prove skeptical of other avenues for change and ultimately come to support the 2018 AUMF’s modest improvements. Or maybe changes like the one we propose could draw in enough support from both directions to enact a compromise. Unless and until either possibility manifests, however, the most likely outcome seems to be that the Trump administration will get its wish and the 2001 AUMF will remain in place, possibly for many more years to come.