Inter-branch controls on presidents’ constitutional authorities have proved inadequate. There are a range of statutory reforms that would guard against overreach and disregard of Congressional prerogatives.
Challenge: Current war powers statutes grant Presidents vast authority over the use of military force—or Presidents have made claims under these authorizations that has exceeded the Congressional intent behind their enactment.
Reform: The Justice Department should withdraw two Office of Legal Counsel opinions, from 2001 and 2002 related to the President’s war powers. These opinions reflect a legally limitless conception of war powers that has been effectively repudiated by subsequent Office of Legal Counsel opinions, and that can be abrogated without affecting all needed Presidential military powers.
Congress must also become more active in this space. It should rescind the 2002 Authorization for the Use of Military Force, which it passed to authorize the use of force against the Saddam Hussein regime in Iraq, and replace the 2001 AUMF with an updated, narrower AUMF that specifies the terrorist organizations, and their associated forces, for which use of force authorization is provided. Congress should also include sunset provisions to prevent the President from overextending this congressionally-sanctioned power and force Congress to engage on the issue.
Congress should proceed to reform the ineffective War Powers Resolution that Congress enacted in 1973 to redress the constitutional imbalance in the executive and legislative roles in use of force decisions.
Challenge: Current law affords Presidents broad power to declare emergencies and wield emergency powers, even in circumstances that fall far short of true emergencies, and makes it very difficult for Congress to revoke the powers when the emergencies have long passed.
Reform: Congress should tighten the criteria for Presidential renewal of emergencies after one year and mandate that the Executive Branch explain and defend each renewal each year in written reports to Congress and in hearings before the renewal becomes effective.
Challenge: Presidents have devised means of skirting the Senate confirmation process for senior Executive Branch positions.
Reform: Congress should amend the Federal Vacancies Reform Act of 1998 to make clear that, in the absence of a “first assistant” to a Secretary of agency head, the President must choose only among Senate-confirmed officials within that department or agency or another to fill a vacancy. Time limits on acting officials to serve 210 days in office should also be shortened to 120 days, with one renewal for a failed nomination. To ensure against special abuses against inspectors general, Congress should provide that a vacant office of inspector general can be replaced only by a Senate-confirmed inspector general from another agency, or a GS-15 official or higher official within the office who has been there for more than three years
Foreign State Interference
Challenge: There is currently no legal obligation for Presidents to report offers of campaign support from foreign powers, nor are there clear and adequate protections against their acceptance of this support, raising the risk that presidential political self-interest could compromise the national security of the United States.
Reform: Congress should require all political campaigns to report to the FBI any contacts from foreign states offering campaign support or assistance, a requirement that has been previously introduced. Similarly, it should specifically prohibit mutual aid agreements between Presidential campaigns and foreign governments. Congress should also amend the Federal Election Campaign Act to clarify that prohibited foreign national contributions to a campaign include services, materials, or information, such as opposition research, that may not have established market value but that a campaign deems useful.
Congressional Subpoena Enforcement
Challenge: Administrations can often ignore or slow-walk Congressional subpoenas, running out the clock to stymie legitimate Congressional oversight or investigative requests for
Reform: Congress should amend the jurisdictional statute governing Congressional subpoena enforcement by imposing a “duty” on the courts to “advance on the docket and to expedite to the greatest possible extent the disposition of any” civil enforcement lawsuit, as previous legislation has suggested. The House and the Senate should have the option of requesting a three-judge panel with direct appeal to the Supreme Court.
Challenge: Presidents can too easily fire the quasi-independent agency watchdog known as an inspector general, and then replace that person with an “acting” inspector general that will be more beholden to the President.
Reform: Regulation of this problem to prevent Presidential firings through “for cause” protection for inspectors general will be ineffectual and likely unconstitutional. A better approach is for Congress to mandate that only a Senate-confirmed inspector general from another agency, or a GS-15 or higher official within the inspector general’s office who has been there for more than three years, may fill the role of a fired inspector general on an acting basis.