For over six decades, Congress has passed a National Defense Authorization Act (NDAA) every year. Unlike most large pieces of legislation, the NDAA is typically passed with wide bipartisan margins. Members from both sides of the aisle weigh in and give relatively direct instruction on how a department of the executive branch—the Department of Defense—should run itself, regardless of which party controls the White House.
This process is an anomaly in the relationship between Article I and Article II authorities. Congress gives far more latitude to the executive in running most other agencies and departments. Only with DoD does Congress use such a heavy hand each year—legislating new offices into existence, dictating the exact number of aircraft and ships to purchase, and restricting the use of funds for specific items and programs. The NDAA may be the best example of congressional oversight of the executive branch.
Congress is about to pass—in bipartisan fashion—a new NDAA next month, during one of the most contentious elections in history. Can—and should—Congress provide this level of oversight across the executive agencies? Should there be yearly authorizations for the State Department, Homeland Security, Commerce, and Education, as well as DoD?
Having a yearly authorization is not perfect—there are drawbacks. To start, Congress’s consistent oversight of DoD has not controlled the growth of department’s bureaucracy. Despite 63 years of defense authorizations, DoD bureaucracy has grown to an incredible size and is now the largest employer in America. Yet while a yearly authorization exposes the dangers of “must pass” authorizations, theoretically the same legislation that has caused DoD’s bureaucracy to grow can be used to shrink bureaucracy (without shrinking the military or jeopardizing national security). There is no requirement for yearly legislation to consistently grow a department.
Another counterpoint comes from those who claim Congress has abdicated its responsibility by refusing to revise or rescind the Authorization for the Use of Military Force (AUMF) passed in the wake of September 11, 2001. Yet Congress has debated the AUMF on multiple occasions, and each year amendments are submitted to the NDAA calling for the recission of the AUMF. The Senate Foreign Relations Committee has held several hearings on the AUMF and debated the issue at often contentious committee business meetings. As it stands, there is not sufficient desire within Congress to rescind the 2001 AUMF, nor has any administration requested that it be rescinded. The existence of yearly defense authorizations without the recission of the AUMF is a testament to congressional approval of the AUMF’s existence at the request of the executive.
Congress has also kept the AUMF quite narrow in scope. It authorizes the DoD to use force to eliminate the perpetrators of the September 11 attacks, namely al Q’aida, their adherents, and those providing support to them. The “adherents and support” clause has authorized the use of force against al Shabab in Somalia, ISIS in Iraq, and for a time, the Taliban in Afghanistan. The AUMF does not grant authority to use military force against any of America’s major adversaries: Iran, Russia, or China. To increase the scope of that authorization, a new AUMF would need to be passed, and several have been proposed since 2001. Congress is actually executing its authority in the AUMF, not abdicating it as some claim.
Congress does seem to do a semi-effective job of legislating deep into the details of DoD operations, though it occasionally crosses the line into the realm of Article II authorities. For example, in 2019, when President Trump moved to reallocate troop levels from the 47 military bases in Germany to locations in Italy, Poland, and the U.K., Congress stepped in, led by Senator Mitt Romney, to dictate where the Commander in Chief could place forces. Although this was likely unconstitutional, the administration did not fight the issue and accepted the oversight.
It seems that Congress could curtail the movements and operations of the executive branch in other agencies if it simply began exercising the muscles of yearly authorizations of each department. This would take time, staff, and an increase in expertise on Capitol Hill, but these costs may be worth it for Congress to realize its full potential and exercise the full scope of its constitutional authority. The executive branch was never meant to encompass such a large number of unelected officials operating with minimal oversight. As it stands, most executive agencies are only held accountable through occasional hearings designed to increase political pressure on the administration to change policies. In a perfect world, Congress would provide oversight through legislation, dictating many of the polices at the agencies, as the Constitution envisions. Providing oversight via NDAA-style yearly authorizations could empower the people far more, and it could also hold the key to curtailing the growth of the bureaucracy.
The Federalist Society's Article I Initiative just released a new video about the NDAA process. Watch it now!
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].