Islamic State

The Administration Has Violated the War Powers Resolution Unless It is Right About the Applicability of the AUMFs to the Islamic State

By Jack Goldsmith
Wednesday, October 8, 2014, 7:50 AM

On Monday, Senator Cruz maintained that the War Powers Resolution (WPR) clock had expired because 60 days had passed since the first air strikes against the Islamic State, which the President notified Congress about in a letter to Congress on August 8.  “Given that 60 days has expired,” the Senator argued, “the president should come to Congress and get proper authorization for this new military action.”

Section 5(b) of the WPR requires the President to “terminate any use of United States Armed Forces” 60 days after he introduces such forces into “hostilities” unless Congress “has enacted a specific authorization for such use of United States Armed Forces.”  Senator Cruz is thus right that the WPR requires the President to seek new congressional authorization from Congress unless the 2001 and 2002 AUMFs are specific authorization” for the airstrikes against the Islamic State.  Recall that the President originally (in August and September) relied on Article II alone as a basis for the strikes against IS.  He then switched about a month ago to say that the strikes are also based on the 2001 and 2002 AUMFs.  The switch in legal rationales has enormous significance for – and in my judgment was likely motivated by – compliance with the WPR.  For if the AUMFs are a proper basis for the strikes against the Islamic State, then there is no issue under the WPR because Congress has authorized the conflict.  Only if the President is wrong about the applicability of the AUMFs to the Islamic State is there a problem under the WPR.

If the administration was pushed by the looming WPR deadline to switch from an Article II basis for the conflict against the Islamic State to a combined AUMF-Article II basis, then it stretched at least one statute (the 2001 AUMF) in order to comply with another (the WPR).  (An alternative would have been to continue to rely on Article II alone and maintain that the WPR did not apply because U.S. troops were not in “hostilities,” or because each strike in Iraq was a discrete and terminated episode of hostilities – but both of these constructions of the WPR would have been even less plausible than the interpretation of the 2001 AUMF.)

Whatever the administration’s motives may be, the important point is that compliance with the WPR, especially for airstrikes in Syria, depends on the administration’s tenuous interpretation of the 2001 AUMF.  But very few in Congress – Senator Cruz and a few others – seem to care how its vital framework war statutes are being construed.