The Constitution gives Congress, not the president, the power to raise, support, and regulate the military and to declare war. Decisions on matters of war and peace must be made democratically and transparently. But successive presidents have defied this balance of power. They have asserted an inherent authority to undertake airstrikes, raids, and other military interventions without prior congressional authorization. When Congress has authorized conflict, such as the War in Afghanistan and Iraq War, presidents have overread Congress’s approval and expanded U.S. military involvement into countries that Congress never contemplated. Compounding the problem, presidents often fail to give Congress the information it needs to oversee these conflicts.
Congress must reclaim its constitutional role in matters of war and peace. The Brennan Center has endorsed repealing outdated and overstretched war authorizations like the 2001 and 2002 authorizations for use of military force. We have also endorsed reforms to strengthen the 1973 War Powers Resolution, a law that Congress can use to force the president to end U.S. participation in unauthorized hostilities. Through our research, the Brennan Center has shown how security cooperation authorities, or laws authorizing the United States to work with foreign militaries and paramilitaries, can lead to unauthorized U.S. hostilities and should be amended to include war powers guardrails. Similarly, we have researched and proposed reforms to address shortfalls in military transparency.
The Brennan Center’s research covers not only presidential overreach abroad but also wartime overreach at home. We have drawn attention to the need to repeal the 1798 Alien Enemies Act, a wartime authority that allows the government to summarily detain or deport non-citizens based solely on their ancestry. The law is the last remaining part of the notorious Alien and Sedition Acts, and it was a key authority behind Japanese, German, and Italian internment during World War II. The law remains ripe for abuse.
