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Analysis

It’s Time to Tear Up the Executive Branch’s Blank Check

Congress must reassert its constitutional authority on national security issues.

  • Feingold Russ Feingold
July 22, 2021
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View the entire 9/11 at 20 series

The 20 years since 9/11 have seen sweep­ing changes to how we think about national secur­ity and go about protect­ing it. Some of the changes, like increased intel­li­gence shar­ing among exec­ut­ive branch agen­cies, are posit­ive. But others have had a detri­mental impact on civil rights and the separ­a­tion of powers. One of the less conspicu­ous but more consequen­tial changes is the near mono­pol­iz­a­tion of national secur­ity by the exec­ut­ive branch.

The Consti­tu­tion expli­citly grants the legis­lat­ive branch the power to declare war, raise and support armies, suspend habeas corpus in times of inva­sion or rebel­lion, “provide for the common defence and general welfare of the United States,” and “provide for call­ing forth the Mili­tia to execute the Laws of the Union, suppress Insur­rec­tions and repel Inva­sions.” These provi­sions envi­sion a prom­in­ent role for Congress in all aspects of national secur­ity. And yet, Congress has ceded much of its power to the exec­ut­ive.

Since 9/11, Congress has repeatedly expan­ded the exec­ut­ive’s author­it­ies by deleg­at­ing its own powers through legis­la­tion and then acqui­esced to the exec­ut­ive stretch­ing the limits of those author­it­ies beyond recog­ni­tion. Put simply, Congress too often has become more spec­tator than parti­cipant in our coun­try’s national secur­ity, to the detri­ment of both insti­tu­tions.

A prime example is Congress’s rushed passage of the Patriot Act. The law amended 15 exist­ing federal stat­utes, broadened the defin­i­tion of terror­ism, and laid the ground­work for our modern surveil­lance state. It was impossible to fully under­stand the rami­fic­a­tions of this far-reach­ing legis­la­tion in just two weeks, and yet the House passed it anyway with a vote of 357 to 66, and the Senate with an over­whelm­ing vote of 98 to 1, myself the lone dissenter.

At the time, I cautioned that the law “contained vast new powers for law enforce­ment, some seem­ingly draf­ted in haste and others that came from the FBI’s wish list that Congress has rejec­ted in the past.” The Patriot Act did not just expand exec­ut­ive powers by author­iz­ing wide­spread wiretap­ping, increas­ing the scope of search warrants and subpoenas, and embolden­ing the worst tend­en­cies of overzeal­ous law enforce­ment. It did so in a way that the exec­ut­ive had wanted for some time, with 9/11 finally provid­ing the appar­ent urgency needed to secure congres­sional acqui­es­cence.

In the two decades since its passage, the Patriot Act has become a symbol of the massive expan­sion of govern­ment surveil­lance post-9/11 and has led to inter­na­tional rebuke over exec­ut­ive over­reach. Although some changes to the law have been made during its three subsequent reau­thor­iz­a­tions, Congress has done too little to change the over­all balance between surveil­lance and civil rights, consist­ently defer­ring to exec­ut­ive branch assess­ments of the coun­try’s national secur­ity needs.

As with surveil­lance, Congress has also largely abdic­ated its role in controlling the use of milit­ary force. The 2001 Author­iz­a­tion for the Use of Milit­ary Force (AUMF) grants the pres­id­ent the author­ity to use all “neces­sary and appro­pri­ate force” against those whom he determ­ined “planned, author­ized, commit­ted or aided” the Septem­ber 11 attacks, or who harbored said persons or groups. But since then, Congress has stood idly by as the exec­ut­ive turned the law into a catchall for anything remotely related to coun­terter­ror­ism. And until recently, Congress did little to push back on pres­id­en­tial war-making unau­thor­ized by any law, such as milit­ary oper­a­tions in Libya and Syria and the targeted killing of an Iranian offi­cial.

Emer­gency powers are another area of concern. Through the National Emer­gen­cies Act of 1976, Congress gave the pres­id­ent nearly unlim­ited discre­tion to declare a national emer­gency and access sweep­ing stat­utory powers. The law origin­ally allowed Congress to termin­ate emer­gency declar­a­tions through a “legis­lat­ive veto” — a bicam­eral congres­sional resol­u­tion that nulli­fies exec­ut­ive action and cannot be vetoed. But shortly after the law’s passage, the Supreme Court ruled in INS v. Chadha that legis­lat­ive vetoes are uncon­sti­tu­tional. That leaves in place a vast deleg­a­tion of extraordin­ary power with no mean­ing­ful checks to protect against abuse. While this prob­lem began before 9/11, it has only intens­i­fied since. 

The exec­ut­ive’s mono­pol­iz­a­tion of national secur­ity is compoun­ded by Congress’s paral­lel aban­don­ment of its over­sight respons­ib­il­it­ies. It is one thing to give the exec­ut­ive author­ity and another to do so with no mean­ing­ful over­sight for the misuse or over­reach of that author­ity. While courts can provide case-specific over­sight, the entity with the capa­city and requis­ite access to clas­si­fied inform­a­tion to consist­ently and substant­ively keep watch over the exec­ut­ive’s national secur­ity agenda is the first branch of govern­ment: Congress.

There are examples of Congress fulfilling its over­sight respons­ib­il­it­ies. The Senate Select Commit­tee on Intel­li­gence, for instance, did an admir­able job invest­ig­at­ing and report­ing on the CIA’s Deten­tion and Inter­rog­a­tion Program, once Congress finally over­came exec­ut­ive branch efforts to with­hold the Torture Memos. This type of invest­ig­a­tion, however, has been the excep­tion rather than the rule over the past 20 years.

As national secur­ity becomes more and more defined by prolonged and amorph­ous fights against inter­na­tional terror­ism, domestic extrem­ism, and cyber warfare, it is partic­u­larly import­ant to rees­tab­lish Congress’s role as a coequal branch of govern­ment with shared respons­ib­il­ity for our coun­try’s national secur­ity.

At the most basic level, Congress should stop deleg­at­ing and start legis­lat­ing. The words “national secur­ity” should not be a trig­ger to grant unfettered discre­tion to the exec­ut­ive. Indeed, the poten­tial impact of national secur­ity policies on Amer­ic­ans’ civil liber­ties makes it all the more import­ant for Congress to craft care­ful safe­guards. This will require Congress to amend exist­ing laws, taking back some of the powers it gave away — as in the case of the Patriot Act and the National Emer­gen­cies Act.

This might seem impossible in a time where politi­cians’ loyalty to party seems to over­ride loyalty to their branch of govern­ment. But national secur­ity is one of the only areas in which Congress has begun to show some signs of bipar­tisan push­back against the exec­ut­ive. In the last Congress, both the Repub­lican-controlled Senate and the Demo­cratic-controlled House voted to termin­ate the border wall emer­gency declar­a­tion, stop arms sales to Saudi Arabia, end our support for hostil­it­ies in Yemen, and limit milit­ary oper­a­tions against Iran. Congress was unable to over­come Pres­id­ent Trump’s vetoes of these meas­ures, but they nonethe­less show prom­ise for an insti­tu­tional reas­ser­tion of power. So does the fact that 49 House Repub­lic­ans recently joined nearly all Demo­crats in voting to repeal the 2002 Iraq AUMF.

Moreover, short of passing, amend­ing, or repeal­ing legis­la­tion, Congress has an ample tool­box for restor­ing its consti­tu­tional prerog­at­ive in the national secur­ity sphere. First, Congress holds the purse strings, appro­pri­at­ing every dollar that exec­ut­ive agen­cies spend. That fund­ing can be with­held, includ­ing for certain programs or agen­cies if exec­ut­ive offi­cials refuse to cooper­ate with congres­sional over­sight or abuse the author­it­ies given to them by Congress.

Second, the Senate can block the confirm­a­tion of exec­ut­ive nomin­ees, of which there is gener­ally a steady stream through­out the tenure of an admin­is­tra­tion. This might be partic­u­larly useful when agen­cies are trying to with­hold docu­ments from congres­sional review. While these prac­tices should not become the norm, Congress should certainly make use of such tools when neces­sary.

Third, Congress could estab­lish specific rules for votes on national secur­ity matters — for instance, requir­ing that national secur­ity votes be preceded by a minimum amount of debate and delib­er­a­tion, not unlike the rules adop­ted for the past two impeach­ment hear­ings. This could prevent votes, like those on the Patriot Act, that are rushed in the imme­di­ate wake of a crisis without proper consid­er­a­tion of their consequences.

The anniversary of 9/11 is an oppor­tun­ity to take stock of the grow­ing imbal­ance in power between the polit­ical branches. The Consti­tu­tion envi­sions Congress having a robust role in all matters of war and peace, and our demo­cracy depends on checks and balances being more than just symbolic. Congress can and must ensure our national secur­ity estab­lish­ment has the author­it­ies it needs while also impos­ing proper guard­rails and conduct­ing rigor­ous over­sight.

Russ Fein­gold is pres­id­ent of the Amer­ican Consti­tu­tion Soci­ety. He previ­ously served as U.S. senator from Wiscon­sin from 1993 to 2011, and as a Wiscon­sin state senator from 1983 to 1993. From 2013 to 2015, he served as U.S. special envoy to the Great Lakes Region of Africa and the Demo­cratic Repub­lic of the Congo.