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Ranking Member Cole Remarks During Article I Hearing on Reforming the War Powers Resolution for the 21st Century

As prepared for delivery during today’s hearing in the House Rules Committee:

Today’s original jurisdiction hearing covers a critical issue facing Congress: the scope of power and authority concerning matters of war. Today’s hearing follows on our hearing last year covering the unique powers entrusted to the legislative branch under Article I of the Constitution. Frankly, there is no topic more important or serious than Congress’ authority to declare when, where and how our nation chooses to go to war.

I first want to thank Chairman McGovern for arranging today’s hearing. Though the chairman and I disagree on many things, defending the constitutional authority entrusted to Congress is not one of them. Both of us are equally concerned about the erosion of congressional authority in matters of war in recent decades, particularly given the corresponding expansion of executive branch authority since the end of World War II. And both of us believe strongly that we must reign in this expansion and reassert congressional primacy.

In Article I, Section Eight of the Constitution, Congress is granted specific powers in relation to war. Among these is the exclusive power to declare war, the power to raise and support armies and a navy and to make rules for the regulation of the armed forces. There is an inherent tension between congressional authority to declare war and the president’s power, under Article II of the Constitution, to be the commander in chief of the armed forces. But in recent years, the trend has been for the executive branch to seize authority at the expense of Congress.  

In 1973, Congress passed the War Powers Resolution, which became law over President Nixon’s veto. The War Powers Resolution states clearly that the president cannot commit the United States to an armed conflict without the consent of the U.S. Congress. In the event that the United States engages in hostilities with a foreign power, the War Powers Resolution requires congressional notification and forbids the use of armed force after 60 calendar days without an authorization for the use of military force.

In recent years, presidents from both parties have committed American military forces to combat without consulting Congress. In 1993, President Clinton committed American military forces to the UN-led intervention in Bosnia. In 2011, President Obama committed American military forces to NATO-led intervention in Libya. And American ground forces have been present in Syria during both the Obama and Trump administrations. Each of these instances has represented a further expansion of independent executive practice to commit American armed forces and a further erosion of congressional authority.

Given this backdrop, it is appropriate for the Rules Committee to now examine the War Powers Resolution. It is clear to me that the existing War Powers framework is no longer sufficient to safeguard congressional authority. I am hopeful that our hearing today will shed additional light on what reforms can and should be made to ensure that Congress will continue to fulfill its constitutional obligations and that executive action will be undertaken within the bounds of clear statutory authority. 

Of course, such a hearing would not be complete without noting the five ongoing Authorizations for the Use of Military Force that are still active today. The 2001 AUMF, authorizing military force against the nations, organizations or persons responsible for the September 11th attacks, and the 1991 and 2002 AUMFs, authorizing military force against Iraq, continue in force today and have not been repealed or replaced by updated authorities. 

Both Chairman McGovern and I have expressed deep concern about this state of affairs, and he and I have both been supportive of efforts to update these authorities. In the 20 years since the September 11 attacks, America continues to engage against terrorist forces and their backers. But neither the 2001 AUMF, broad as it is, nor the 2002 AUMF were ever intended to serve as a blank check, authorizing any and all use of military force wherever in the world the president determines it is necessary. I am in full agreement with my colleagues who support reforming the 2001 AUMF, but I would also caution that we should not simply repeal these authorities without ensuring there is an appropriate replacement. 

This is a bipartisan debate Congress should be having, and indeed, must have in the months to come. We owe it to the institution and the American people to ensure that Congress has held a thorough debate on committing American troops to combat in accordance with our constitutional responsibilities.

With that, Mr. Chairman, I thank you again for calling today’s hearing and thank our witnesses for being here today sharing their important insights and expertise with us. And I want to thank the staff on both sides of the dais for their hard work in putting this hearing together. I think it will be an enormous benefit to the Congress in that respect.

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