Fifty years after Congress repealed the Gulf of Tonkin Resolution, which had given the president the green light to wage war in Vietnam, Maine’s entire congressional delegation is looking for only the second time in U.S. history to repeal an authorization for the use of force.
Clockwise from top left: Sen. Angus King, Sen. Susan Collins, Rep. Jared Golden and Rep. Chellie Pingree File photos
They hope to pull the plug on two different ones this fall, the first one enacted before the Gulf War that pushed Saddam Hussein’s troops out of occupied Kuwait and the other passed to endorse the American invasion of Iraq in 2003.
Those seeking to repeal the Iraq force authorization measures say they’re no longer necessary, given the demise of Hussein’s regime. They warn that leaving them in place opens the door to potential problems in the future with presidents relying on the outdated measures to justify actions that Congress might not support.
The resolution, which the U.S. House has already endorsed, would repeal two congressional approvals, from 1991 and 2002, that allowed military activities in Iraq.
If approved, it would mark the first time Congress has withdrawn an authorization to use force since the repeal of the Gulf of Tonkin Resolution in 1971 that had been approved in 1964 to allow the escalation of the Vietnam War.
Thirty-nine senators are co-sponsors of the resolution, including 10 Republicans. Both U.S. senators from Maine, Republican Susan Collins and independent Angus King, are among them.
Wary of presidential overreach, Collins and King have long been proponents of ensuring that Congress preserves its constitutional authority over the use of force.
The aircraft carrier USS Theodore Roosevelt transits the Arabian Gulf in 2015. The vessel saw its first action in the 1991 Gulf War, and has since been utilized in military operations in support of the wars in Iraq and Afghanistan following the 9-11 attacks. Congress is now trying to repeal the authorizations for the use of force in Iraq. U.S. Navy
“Only the Congress may declare war or commit our armed forces to a sustained military conflict,” Collins said last year after pointing out that “over the past decade, Congress has too often abdicated its constitutional responsibilities on authorizing the sustained use of military force.”
The Senate Foreign Relations Committee endorsed the resolution to repeal the Iraq measures two months ago but it has not yet come to the floor of the Senate.
Senate Majority Leader Chuck Schumer, a New York Democrat, told colleagues in July that he intends to bring up repeal for a vote sometime this year.
“Members should be on notice: We are going to vote on this,” he said at the time.
Most or all Democrats are expected to vote for repeal along with enough GOP senators to make the threat of a filibuster moot.
Democrats Jared Golden and Chellie Pingree, who represent Maine in the U.S. House, voted with the House majority in June to repeal the use-of-force authorizations.
Golden, a U.S. Marine veteran who fought in both Iraq and Afghanistan, said lawmakers need to stop handing over to the president the power to wage war as he sees fit.
“Congress after Congress has been content to sit back while presidents of both parties send young Americans into battle without oversight or accountability to the public,” said Golden, who represents the state’s 2nd Congressional District.
He said he is glad to see “bipartisan momentum” to repeal the use of force authorization secured by President George W. Bush as he prepared to invade Iraq.
Repealing the authorization is a move supported by President Joe Biden.
Deputy Secretary of State Wendy Sherman told a Senate committee that Biden “is committed to engaging with Congress on questions of war and peace, and to being open and transparent about when, where, why and how the United States chooses to use military force.”
She said the administration backs the repeal because it doesn’t need the outdated legal language “to protect the American people from terrorist threats, respond to attacks on our personnel or facilities overseas, to ensure the safety and security of our people, or to maintain our strong relationships with Iraq and other regional partners.”
A number of Republicans have expressed concern that repeal of the aging authorizations is part of a bid by Biden to shift American policy to be softer on Iran, a country they portray as especially dangerous.
“It is curious to see that some of our colleagues who are the most exercised — the most exercised — about trying to undo authorizations for the use of military force are somehow also among the quietest — the quietest — when it comes to the unfolding disaster in Afghanistan and oversight of ongoing conflicts,” Senate Minority Leader Mitch McConnell, a Kentucky Republican, said on the Senate floor in July.
But the legislation doesn’t address the 2001 authorization that allowed U.S. military action in Afghanistan and against terrorism more generally. Its focus is only on the two measures that allowed the president to go to war in Iraq.
Pingree, who represents Maine’s 1st Congressional District, said in a prepared statement that “America has been at war so long that sons and daughters who were born after these conflicts began are now old enough to enlist. These forever wars have taken an incalculable human toll — impacting the future of not one, but two generations of Americans.”
After insisting “these wars should have ended long, long ago,” she called on Congress “to prevent more endless wars by revoking the outdated 2001 authorization for the use of military force.”
Senate Majority Leader Chuck Schumer of New York. Bill O’Leary/The Washington Post
U.S. Sen. Bob Menendez, a New Jersey Democrat and chairman of the Senate Foreign Relations Committee, said there was no reason to leave it in place any longer.
Schumer said the provision that Congress approved 20 years ago “has far outlived its usefulness.”
“The Iraq war has been over for nearly a decade,” he said, and the authorization is no longer needed.
“There is a real danger to letting these legal authorities persist indefinitely,” Schumer said. “Allowing an authorization for military force to just lie around forever is an invitation to a future administration to use it for any military adventurism in the region.”
“Americans, frankly, are sick of endless wars in the Middle East,” he added. “Congress simply has to exert more authority over matters of war and peace, as we all know the Constitution prescribes.”
Repealing the authorization won’t mean that U.S. troops will leave Iraq. Its government has invited U.S. military personnel into the country, so there’s no need to put them there through force.
Richard Visek, the acting legal adviser for the State Department, told the foreign relations panel that if the situation in Iraq deteriorated and required a sustained military response, the administration “believes that it would be important for the Congress and the administration to work together to develop an appropriate new domestic authority that is tailored to addressing such a scenario.”
What repeal means in terms of restricting presidential power is unclear, as a 1970 opinion from the Office of Legal Counsel told the budget bureau in a memorandum about the consequences of repealing the Tonkin Gulf Resolution.
“Since the president’s inherent constitutional authority to employ military force abroad depends to a very considerable extent on the circumstances of the case, and, in particular, the extent to which such use of force is deemed essential for the preservation of American lives and property or the protection of American security interests, it is impossible to state in concrete terms the legal effect” of any repeal, the legal office said then, leaving the door open for presidents to act on their initiative with or without authorization.
Since World War II, though, Congress and the president, regardless of party, have had a tough time working together. It’s an issue that lawmakers have sought for decades to get a handle on.
As it turned out, the January 1971 repeal of the Tonkin Gulf Resolution, a move supported by both Maine senators at the time, Republican Margaret Chase Smith and Democrat Ed Muskie, proved fruitless in ending the war in Vietnam that it allowed after its passage in 1964.
Edmund Muskie U.S. National Archives photo
In 1973, frustrated by the inability of Congress to stop the Vietnam War, Muskie helped lead the charge to pass the War Powers Act, which sought to guarantee that Congress would not be shoved aside in decisions of war and peace.
At the time, Muskie said that “three decades of total war, limited war and cold war have propelled the American political system far along the road to executive domination in the conduct of foreign relations,” expanding presidential power along the way.
“It is no longer accurate to characterize our government, in matters of foreign relations, as one of separated powers checked and balanced against each other,” Muskie, a Rumford native, told colleagues.
He said it served no purpose “to recriminate over how and why the power to initiate war passed out of the hands of Congress and into the hands of the president,” but it was time to restore the role that the Constitution gave to the legislature.
The War Powers Act, though, has mostly been a dead letter, ignored by presidents and Congress alike in the rush to deal with overseas adversaries.
Capitol Hill, though, has not given up entirely on trying to maintain its constitutional prerogatives, as the move to repeal the two authorizations for the use of force in Iraq shows. Some hope to push for more oversight and control.
Golden has even scoured the statute books to find older resolutions he’d like to see repealed.
He is a co-sponsor of a measure that would repeal one from 1957 that gave President Dwight Eisenhower the right to offer up to $200 million in military and economic assistance in the Middle East from appropriations available at the time under the Mutual Security Act of 1954. Eisenhower leaned on its language to justify landing American troops in Lebanon in 1958.
That bill, introduced by U.S. Rep. Mike Gallagher of Wisconsin, doesn’t seem to be going anywhere.
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