Our Constitution gives Congress, not the president, the constitutional power to declare war.
It gives Congress the authority to create, fund, and regulate the military. As it stands, section 1202 is an overbroad authority that already risks degrading these constitutional prerogatives and removing decisions of war and peace from democratic debate and accountability. Contrary to the Department of Defense’s assertions and asks, expanding section 1202 would deepen these risks, widening the aperture for U.S. forces to engage in and direct combat in unauthorized, foreign wars.
Katherine Yon Ebright serves as counsel with the Brennan Center’s Liberty & National Security Program, where she focuses on war powers and the constitutional separation of powers.
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