Forcing the Issue on Use of Force

The legal options may be limited, but Congress can still fight for its right to authorize a fight

President Trump has started another war without congressional authorization. Over the weekend, leading congressional Democrats continued to formulate legalistic and process-oriented responses to Operation Epic Fury, demanding Congress return to vote on a War Powers Resolution and urging the administration to explain its rationale and end goals for the war given how minimally it had engaged lawmakers in the run-up.

These types of responses hold little political risk for opposition leadership because they have such limited chance to be impactful. This is not entirely Democratic leadership or Congress’s fault: although Congress delegated short-term or situational uses of force to the president in the War Powers Resolution, the Supreme Court created a ratcheting-up problem for the legislative branch by striking down the legislative veto in the Chadha decision. It now takes an impractical supermajority in each chamber to claw back warmaking authorization authority.

The challenge for Congress post-Chadha has been to move beyond the rhetoric of legal constraint on the presidency, which White House Office of Legal Counsel chief Jack Goldsmith described this weekend as “empty,” to where the institution can still be effective: the realm of politics. Congress is where military and foreign policy should be debated and where explicit constraints on presidential action can be made.

Congress also decides how to allocate the resources of the federal government in ways that limit military adventurism. Until political winds shifted, members refused to allocate funds for modern warships after the Civil War and an internationally-deployable army after World War I. Now, leadership in both parties ensures Congress directs enormous resources to the military and makes every attempt to bury opposition to it, either through committee assignments, district funding carrots, horsetrading with other parts of the budget, or in the case of the Democratic Party, consistently punching left. It’s hardly surprising that presidents find ways to use that military, particularly because the nature of the office incentivizes it to create the political perception of protecting the American people.

Congressional debate about American military intervention and presidential warmaking regularly has occurred in the nation’s history. They often happened inside political parties, as different factional perspectives emerged on topics like establishing American colonial holdings and American intervention in other powers’ wars. Presidents had to navigate these intra- and inter-party conflicts, and it made them more deliberate in significant uses of force.

We, however, continue to live with the legacy of the Cold War, during which both parties tried to avoid looking soft on Soviet projections of power by supporting ballooning military budgets and interventionist presidential policies. This desire closed factional gaps, at least until the latter stages of the Vietnam War. Conservatives reacted hard when congressional Democrats tried to regain control of the imperial presidency, and the pattern snapped back into place. The War on Terror simply was layered on top of this structure, as again hawkish congressional leadership decided against picking political fights with the executive branch.

As he has in so many ways, Trump’s use of military force has upended this paradigm. Military strategy expert Phillips O’Brien wrote this weekend that he thinks Trump views “the US military as a way of getting cheap wins, of executing what he can claim are overwhelmingly successful operations and for which he can take credit.” Although Trump has assembled a massive air armada, he can still turn it on and off. The assassination of Ayatollah Ali Khamenei may provide an opportunity to do so, although, as General James Mattis frequently said, “the enemy gets a vote.” Iran may continue military strikes long after Trump has lost the stomach for it.

Congress isn’t going to receive straight answers on the end goals of military action against Iran because there aren’t any. Justifications already shifted dramatically in a week between Trump’s State of the Union warnings about Iranian missile and nuclear weapons programs to embrace of regime change to Iranian interference in U.S. elections. The point is the political benefit of action that looks decisive, like the supposed “obliteration” of the Iranian nuclear program in June that suddenly reemerged last week to be on the verge of success. The same rationale and motivation was used to sink civilian vessels in the Caribbean and whisk Maduro out of Caracas. These targets were chosen for their political salience. Iran has been an arch-nemesis for almost 50 years. Very few Americans care about Venezuela or supposed drug runners.

How should congressional Democrats (and Republicans opposed to this adventurism) respond to a president using warmaking authorities with little interest in outcome beyond his own domestic political benefit? Lean into the institution’s inherent political powers. The legal framework offered in the War Powers Resolution is the start, not the end of the political debate that can endanger the benefit the president sees in unrestrained action. The appropriations process is another avenue. The aperture for discussion should widen beyond the specifics of Iran to expose what kind of nation we are becoming in the world, to which the public is more likely to respond. Constantly introduce measures that keep the fundamentals of unilateral use of force by this president at the forefront.

Doing so would require Democratic leadership to loosen the reins on the factions in their party most capable of making these arguments. That didn’t happen in the debate about the invasion of Iraq, and we saw the consequences. To be sure, Republicans will respond by increasing the political heat on the next Democratic administration if it engages in uses of force. Speaking as congressional institutionalists and champions, that’s good. The constitutional system was not designed to hand these decisions off entirely to one person.

The concern about the conduct of Immigrations and Customs Enforcement fits into similar questions of presidential power and overreach. Administrations have poured billions of dollars into the agency and furnished it with military-grade weaponry. The Trump Administration has expanded it in order to use it at a much broader scale. Congress has handed the presidency a massive internal policing capacity, once again with limited oversight and constraint. Its size and political utility to an administration will determine its use and conduct, not legalistic frameworks. This is a dangerous kind of agency to leave around.

APPROPRIATIONS

The appropriations process for the legislative branch will begin this week as its subcommittee will hear budget requests from the Library of Congress and Government Publishing Office on Friday at 9:00 AM in Rayburn HOB 2362-B. Their requests aren’t yet available online.

The Labor, Health and Human Services and Interior-Environment subcommittees have their member days on Thursday at 10:30 AM and 1:00 PM, respectively.

Appropriations Chair Tom Cole announced that the committee is accepting submissions for earmarks Community Project Funding requests, increasing the limit for member offices to 20 each. The committee is using an electronic submission portal and has shared resources on the process on its website.

A few weeks ago, we ran a poll about a subscription-only appropriations process newsletter. Thank you to everyone who responded. For now, we’ll keep weaving lightweight appropriations talk into this newsletter and keeping this tracker of deadlines updated.

MODERNIZATION

The Congressional Data Task Force has announced the dates of its meetings for this year. The next meeting will be on March 26 from 2:00 PM to 4:00 PM in Room 217 of the Capitol Visitors Center (and online). Subsequent meetings will be on June 11, and December 3, with the to-be-scheduled Congressional Hackathon falling in between, traditionally in September.

It’s also likely that the Library of Congress will hold its Congress.gov public users meeting in September.

The POPVPOX Foundation released a proposal to create a congressional office dedicated to helping members and staff understand AI and use it in their duties. They argue for an independent office with an initial $1 million appropriation (growing to $3.87 million) to ensure it is dedicated to change management rather than treat AI as another aspect of IT management and suggest starting small with a House-only office that then scales up to include Senate coverage. They use the House Office of the Whistleblower Ombuds as a model for this approach.

It’s a thoughtful and detailed proposal for a serious issue that does not have adequate resources dedicated to it. Given the benefits that generative AI can provide member and committee offices, it’s important to have institutional support for overcoming inexperience. The congressional reform field needs more organizations like POPVOX Foundation that can burrow into the details of pressing topics for congressional stakeholders

We would take a different approach toward institutional support for AI deployment, favoring a broader perspective of its current adoption. Although individual member and committee offices may continue to lag behind in figuring out adoption of generative AI, in many cases the legislative branch is at the leading edge internationally in deployment of other forms. The legislative branch data exchange goes back to the 1990s. The House Clerk’s Office started development of the Comparative Print Suite, which shows how legislation would change existing law, in 2017. It’s now a global standard. CBO is engaged in advanced data modeling. GAO’s AI use inventory includes summarizing GAO mandates, organizing large volumes of text, and automated responses to questions on its work. The Library of Congress has experimented with machine learning and AI at least since 2018, and its text analysis capabilities go back at least a decade before that. (We raise this context not to suggest the POPVOX team doesn’t know all of this, but to share it with our readers.)

What these and other projects – including in member and committee offices – lack is coordinative support. We think a most cost-conscious, higher-yield approach would be to build off the existing collaborative architecture of the Congressional Data Task Force and hire a staffer to take on that work. CDTF is the stand-out success for legislative branch technology collaboration and goes back 14 years. We also have a soft spot in our hearts for the House Digital Service, which we would love to see live up to the original proposal from 2017 as a full-fledged Congressional Digital Service.

Ultimately, AI should be in service to the democratic mission of all of Congress. Whatever resources it dedicates to AI adoption should not preclude support for members being responsive to public demands, developing better policy and better law, and making its actions transparent and easily understandable. By that standard, we need to think bigger about a congressional AI office: even bigger than a congressional technology office. But bigger organizationally isn’t necessarily better. We worry not building upon the organizational structures and talent already in place and staying cognizant of the current political moment is to forego an opportunity to build towards something great instead of creating one more silo.

MEMBERS BEHAVING BADLY

Rep. Nancy Mace plans to introduce a privileged resolution on the House floor on Wednesday requiring the House Ethics Committee to release all reports of sexual misconduct or harassment by members and staff. Her motion will take place one day after the Texas primary elections, in which Rep. Tony Gonzales is still running for reelection after it was reported he had sent sexually explicit texts to a staffer with whom he was having an affair. She later lit herself on fire and died.

Mace, along with Reps. Lauren Boebert, Anna Paulina Luna, and Thomas Massie, have called on Gonzales to resign his seat.

Some families of the victims of last January’s midair collision near Reagan National Airport watched in person as House leadership closed a vote on an aviation safety bill that was on the verge of passing. They then witnessed the delegation reverse course on leadership instruction and defeat the bill because of objections from the Pentagon and Transportation and Infrastructure Committee Chair Sam Graves.

READING LIST

Lots of good stuff by friends of the newsletter recently.

AEI’s Phillip Wallach salutes the upholding of the separation of powers in the Learning Resources v. Trump tariff decision.

Georgetown’s Matt Glassman plumbs the depths of the decision’s connection to the legislative veto, relying on fellow Hoya Josh Chafetz’s recently-revised law review article on the Chadha decision and the presidency. We liked Matt’s piece enough to link to it up top, too.

“Many legislators have lost the concept of what they are supposed to do, which is to be lawmakers,” writes AEI’s Kevin Kosar in his full-throated defense of Congress as the appropriate font of policy. He double-dips with an interview about the productive “secret Congress” with the New York Times.

Former House Parliamentarian staffer Max Spitzer walks through the powerful and underutilized motion for the previous question, which is a more straightforward way for members to seize back control of debate from leadership than things like discharge petitions.

BPC’s J.D. Rackey summarizes congressional modernization efforts related to constituent engagement.

ODDS & ENDS

CBO transparency. The Congressional Budget Office is going to publish the code for some of its models this year on its GitHub page so the public can better understand its modeling methods.

No surprises. Roll Call’s annual presidential vote studies report found near-complete alignment of support by House and Senate Republicans with presidential positions. 44 of the 53 Republican senators voted with the president 305 out of 305 times. Democratic opposition was similarly lopsided. The report breaks down the top supporters and dissenters in both parties.

Closed rules, open poking. Rules Committee ranking member Jim McGovern distributed stats to Republicans listing the percentage of their own amendments that have been blocked by House leadership’s affinity for closed rules.

Staff pay. Roll Call’s Nina Heller writes about the lack of transparency many staffers find in the pay ranges for positions in the House, rooted in the cumbersome way the House publishes that data. She points to two private sector solutions, but better policies on statements of disbursement data should be a chamber goal.

Mark your calendars. The iLegis International Conference on Legislation and Law Reform will be held in Washington on Oct. 29-30.