Restoring the Balance of War Powers: A Call to Repeal and Replace the 2001 Authorization for Use of Military Force

Less than a year ago, the House Foreign Relations Committee held a hearing entitled “Reclaiming Congress’s Article I Powers: Counterterrorism AUMF Reform.” The Committee specifically considered the 2001 Authorization for Use of Military Force (2001 AUMF), which is still the primary authority for use of force against terror threats despite it being hastily enacted days after the September 11 attacks, over twenty years ago. The hearing highlighted the complex interplay between the President’s war powers under Article II of the Constitution and Congress’s Article I power to declare war. The unclear division of war powers set forth in the Constitution has created a tug-of-war between the executive and legislative branches. Ideally, a president should be held accountable through congressional oversight yet have the flexibility to act decisively. Against the backdrop of ongoing and ever-evolving terror threats, important questions about separation of powers have emerged such as should Congress delegate its war powers to the President through a replacement authorization for use of military force and does the President have inherent authority to use such force during offensive operations. There are also questions about whether the 2001 AUMF is an antiquated framework that has outlived its usefulness given it was aimed at combatting threats that have largely been neutralized. ISIS, for example, is a current threat and it did not exist when the 2001 AUMF was enacted. Despite calls from the executive and legislative branches to repeal and replace the 2001 AUMF, change is moving as quickly as pond water. This article urges the legislative branch to act quickly and repeal and replace the 2001 AUMF. It sets forth guidance for a new authorization, an authorization for use of force that makes the U.S. safer while maintaining respect for the division of war powers. Checks and balances are recommended such as a sunset clause that would require Congress to revisit the authorization and debate its continued utility. In short, the terrorist threat has evolved and so should the law.