By WILLIAM S. SMITH • September 12, 2019
Congressional deference to the executive branch on the issues of war and peace has reached the point where some scholars have argued that the Constitution is simply no longer functioning. The framers of the Constitution would find the process by which an American president launches combat operations in Libya or Syria as unrecognizable.
Two brilliant law professors, Michael Glennon of Tufts University and Charles Tiefer of the University of Baltimore, have offered an ingenious remedy to the unchecked extent of executive branch war powers. In a recent post in Lawfare, Glennon, the former counsel at the Senate Foreign Relations Committee, and Tiefer, the former acting general counsel of the House of Representatives, note that legislative procedures used to consider appropriations bills in the House weaken its ability to assert its war powers. They wrote that it is “no coincidence” that “control over warmaking has all but vanished at the same time that its power over the purse has devolved into an up or down vote on a single gargantuan appropriations bill, the contents of which are known to only a select few.”
As the authors point out, by legislating through continuing resolutions, members of the House have very little ability, for example, to deny the executive branch the funding for the war in Yemen. Lawmakers may vote against the continuing resolution on the grounds that it funds the Yemen war but with that vote, but they would then be voting to shut the federal government down and against all of the programs funded in the bill. A vote against the continuing resolution is simply howling at the moon.
Glennon and Tiefer provide an elegant solution to this ongoing legislative dilemma. They recommend that the rules of the House be amended so that any member would have the ability to raise a “point of order” against funding for any military operation that the House “has previously found, by simple resolution, requires authorization by Congress.”
Such a change would set up a simple process to deny funding for wars not previously authorized by the House. First, the House would pass a simple resolution, unrelated to and prior to the continuing resolution, stating that, for example, Congress did not authorize the war in Yemen. Congress successfully passed such as a resolution on Yemen earlier this year that was later vetoed by the president. Then, with the rule changes in place, if the House were to consider an appropriations bill or a continuing resolution that contained funding for the war in Yemen, any member of the House could raise a point of order against the bill and block it.
Just the presence of such a procedural option would likely deter the Senate from advocating for a continuing resolution with funding for wars where the House was on record as objecting. Moreover, a veto threat would be almost laughable, as the president would be threatening to shut down the government in a situation in which the House was virtually certain to block any bill containing the war funding. A veto threat would be hollow, as any single House member opposed to the war funding would hold the stronger cards. The proposal by Glennon and Tiefer would restore formidable congressional authority in issues of war and peace.
For the proposal to work, however, the House leadership and Speaker Nancy Pelosi would need to be serious about reigning in presidential war powers. Even if the House were to amend the rules to allow any member to offer a point of order against war funding, points of order would need to be allowed when the House actually considered the continuing resolution. Without House leadership support, any House rule change as recommended by Glennon and Tiefer would be a dead letter.
Pelosi has in the past argued that the unique authority of the House to appropriate funds made it the constitutional equal to the president on foreign policy. With the proposal by Glennon and Tiefer now on the table, we have the chance to see if she is serious about this critical issue.
William Smith is a research fellow and the managing director at the Center for the Study of Statesmanship at the Catholic University of America. He is the author of the newly published book “Democracy and Imperialism.”
Article originally published at The Hill.