From 9/11 to 1/6: Lessons For Congress From Twenty Years of War, Legislation, and Spiraling Partisanship

From 9/11 to 1/6: Lessons for Congress from Twenty
Years of War, Legislation, and Spiraling
Partisanship
Dakota S. Rudesill*
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
I. TAKING STOCK OF CONGRESSS PERFORMANCE . . . . . . . . . . . . . . . . . . . . . . 44
II. PARTICULAR LESSONS AND ACTION ITEMS . . . . . . . . . . . . . . . . . . . . . . . . . . 46
A. Reducing Partisanship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
B. Asserting Congress’s Constitutional Authorities . . . . . . . . . . . 48
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
INTRODUCTION
The Framers of the Constitution made the national legislature the federal gov-
ernment’s f‌irst branch. In Article I, they gave the United States Congress expan-
sive authority and responsibility to “provide for the common Defence,” what
today we call national security: questions of war and peace, organization and gov-
ernance of the military and other parts of the national security apparatus, safety
against domestic threats to republican self-government, and foreign affairs. Two
decades on from the September 11, 2001 (9/11) attacks by foreign terrorists and
the continual armed conf‌lict and chronic domestic insecurity they produced, and
in the wake of the violent insurrection at the U.S. Capitol on January 6, 2021 (1/
6), it is appropriate to appraise Congress’s performance over the past twenty
years.
The record is mixed. Going forward, Congress certainly can and urgently must
summon its foresight, civic courage, and institutional resolve to do a better job
providing for the common defense while also doing its constitutional duty to
“insure domestic Tranquility.”
Part I of this essay takes stock overall. Congress helped the nation to mitigate
the foreign terrorist threat more effectively than most probably expected immedi-
ately after 9/11. That is the good news. But Congress has done worse regarding
the domestic terrorist threat than almost anyone twenty years ago would have pre-
dicted or hoped. Additionally, Congress has provided the Executive Branch a pre-
dictable but dangerously expansive degree of latitude in national security. Part II
* Associate Professor, Moritz College of Law; Senior Fellow and Co-Leader of Security &
Governance Research, Mershon Center for International Security Studies, The Ohio State University.
For comments on drafts and productive conversations, I thank Lorelei Kelly, Matthew Kronisch, Dave
Rapallo, Peter Shane, and Valerie Shen. I thank the Syracuse Institute for Security Policy and Law and
the Journal of National Security Law and Policy for their invitation to write this essay and their valuable
suggestions and careful work. I am responsible for all content and any errors. The views expressed here
are mine and do not imply endorsement by any U.S. Government agency. © 2021, Dakota S. Rudesill.
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