Fresh off the Thanksgiving holiday, the Senate is set to vote to end debate on the National Defense Authorization Act (NDAA) for fiscal year 2022 on Monday, November 29. This crucial bill is the chief way Congress exercises its influence over defense policy. The House enacted its version of the bill at the end of September. If the Senate passes the legislation and the two Chambers resolve the differences between the bills, it would be the 61st consecutive year that Congress has enacted the legislation.
The NDAA primarily affects the Department of Defense, though it also regulates some security-related programs in the Department of Energy. It includes policies on issues like pay for military personnel; the code of military justice; what weapons the military should purchase, operate, or eliminate; or what facilities the military may construct. A sprawling bill, it’s the vehicle Congress regularly uses to legislate on virtually any issue under the defense sun.
When setting policy, as it does in the NDAA, Congress sometimes sets itself up for disagreement with the Executive Branch. There’s an old legislative adage: The President proposes and Congress disposes. With the NDAA sometimes, it’s more like: The President proposes to dispose, and Congress says, “Take a hike.” In other words, it’s not uncommon for the Department of Defense (DOD) and the President to recommend getting rid of a program or resource, and Congress decides to fund it anyways. So it is this year. “The Administration strongly opposes restoration of funding to systems that limit DOD’s ability to divest or retire lower priority platforms not relevant to tomorrow’s battlefield,” read’s the Biden Administration’s “Statement of Administration Policy” on the House’s version of the NDAA. Though the Executive Branch often objects to some provisions of the NDAA, they are rarely vetoed, and they eventually make it into law either by Congress overriding the veto or by Congress passing a different version more acceptable to the President.
Like the NDAA, all authorization legislation sets policies for the government’s programs and activities. Along with appropriations bills, which provide funding for the government, they are critical ways Congress uses to direct the government and exercise oversight over the Executive Branch. But all is not well with the authorization process. As we explain in our white paper, “Fixing the Authorization Process: Restoring Checks and Balances”:
As the branch of government closest to the people, Congress has the obligation to set national policy through authorization bills, which create departments, agencies and programs; and then fund these policies through appropriations legislation. Both the House and Senate have rules to separate these processes, but in recent decades, Congress has too often failed to complete the authorization process. Failure to authorize is one of the primary ways Congress surrenders power to the Executive Branch, since it is the means by which it holds the Administration accountable for its actions, and make policy corrections when necessary.
While some authorizations expired decades ago, the annual NDAA bill, however, shows that it is still possible for Congress to enact authorization legislation.
Congress still does have some time to enact a defense authorization bill for fiscal year 2022. Unfortunately, the Senate began considering the legislation much later than it usually does, adding to the end-of-the-year crunch. In early November, Politico noted:
The defense legislation typically isn’t finalized until late each year. But the delayed Senate debate is striking. Only three previous bills have commenced debate on the Senate floor at a later date.
One of the ironies of this delay is that once the Senate votes on the bill, the result will be strongly bipartisan The House enacted the NDAA 316-113, with majorities of both parties supporting its passage.
After the Senate enacts the bill, the two Chambers will need to work out the differences between the two versions. Congressional leaders are reportedly already talking about how to resolve the differences, paving way for a compromise to pass Congress sometime later. It’s not clear when Congress will finally pass the NDAA through both Chambers. But it’s imperative that it does, for the good of America’s security posture and for Congress’ on institutional health and strength.
Mark Strand is the President of the Congressional Institute and Timothy Lang is the research director. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the Legislative Branch.