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Jack Landman Goldsmith, Congress’s Intimate Involvement in Managing the Forever War (May 5, 2023).

Abstract: Conventional wisdom says that “authorizations for the use of military force” (AUMFs) are the key congressional engagement with the forever war. Since Congress has not refreshed the relevant AUMFs in over two decades, the AUMF focus makes it seem like Congress is disengaged from the conduct of the forever war, or perhaps that Congress has inappropriately delegated war powers to the President. That focus also makes it seem like repealing or modifying the AUMFs is the key to ending the forever war, or at least to Congress recapturing or reasserting its war powers, or to disciplining presidential militarism. This paper argues that from a separation of powers perspective, the AUMF focus is misleading to the point of wrong. AUMFs are not the only or even the main congressional engagement with the forever war, even though the executive branch and scholars focus on those sources. Congress through its formal votes and through the continuous actions of certain committees has long been heavily involved in managing practically every element of U.S. forever-warfighting, through a thick and persistent array of appropriations, authorizations beyond the well-known AUMFs, reporting requirements, ongoing consultation, and extensive ex ante and ex post oversight. Congress is formally very much on board for the President’s conduct of the forever war, and is sometimes more hawkish than the President. This preliminary draft sketches these points and raises implications and questions.