Bruce Fein’s Revealing Defense of Senator Paul’s Draft Declaration of War

By Jack Goldsmith
Friday, November 28, 2014, 9:29 AM

Earlier this week I analyzed Senator Paul’s proposed war declaration.  Bruce Fein has a spirited defense of Senator Paul’s draft (which includes a swipe at me for asking an “obtuse[e]” question).  But the defense contains two errors that reveal the limits of what the Senator proposes.

Fein’s first and most important error is in this passage:

Mr. Paul’s draft confines the authorized use of force to protecting only Americans and American facilties in Syria and Iraq to protect against mission creep, nation building, virtual global warfare against the Islamic State, and war with Syria at a staggering financial cost.  . . . Mr. Paul’s restricted authorization is necessary to end Mr. Obama’s ongoing illegal war against Syria and to avoid warring in Iraq to support a sectarian Shiite government allied with Shiite Iran and Hezbollah.

This last sentence is wrong because the President can act beyond what Paul’s Resolution authorizes by using his Article II powers.  There is a large difference between (i) a limited authorization for the use of force, which gives Congress’s imprimatur and constitutional support to force only for a precise time period or precise purposes, and not beyond, and (ii) a ban on presidential uses of force.  Senator Paul’s draft only does the former.  So if the draft became law, Congress would indeed authorize the President to use force only for one year and only “to protect the people and facilities of the United States in Iraq and Syria against the threats posed thereto” by the Islamic State.  But the President would not be stopped from using force, beyond what Congress authorized, under his Article II authorities.  Imagine that the President discovered an imminent plot by the Islamic State in Syria to use force in the American homeland.  Senator Paul's Resolution would not authorize the President to use force to stop the plot because it authorizes force only to protect Americans and American property in Syria and Iraq, not in the United States.  But despite the limited authorization, the President could invoke his Article II authorities to use force to stop the plot.  More broadly, President Obama starting in August (and continuing to an uncertain degree today) has relied on Article II, beyond extant AUMFs, to use force against the Islamic State in Iraq and Syria.  (He used force under Article II against IS in August and most of September, and even after he switched to rely as well on the 2001 and 2002 AUMFs, he continued to invoke Article II.)  The President could continue to rely on Article II even if the Paul draft became law.  Most significantly, President Obama has asserted unprecedentedly broad powers under Article II to engage in pure humanitarian interventions in Iraq (and could presumably extend that rationale to humanitarian intervention in Syria).  Senator Paul’s Resolution does nothing to stop such uses of force under Article II.  

In short, Fein’s first mistake is to treat a limited authorization for the use of force as an implicit ban on the use of force that is not authorized.  Senator Paul’s Resolution contains only a limited authorization, not a ban on presidential power.  It would change the scope of presidential power only if the President wants to use force that is authorized neither by Senator Paul’s Resolution nor by Article II (which the President has interpreted quite broadly).  If the Senator wants to accomplish what Fein is talking about, his staff needs to go back to the drafting board and affirmatively ban the presidential uses of force the Senator wants to discontinue.  Though I do not recommend it, the ban could be as simple as: "The President is barred from using force against the Islamic State not herein authorized."  I doubt that such a ban would be constitutional as applied to the President using force to protect American lives in the homeland, but I think it would be constitutional as applied to pure humanitarian interventions.

Fein’s second error is contained in this sentence:

Mr. Paul’s draft bill insists that for the first time in 73 years, Congress — not the president acting unilaterally or via limitless delegation — decides on when and under what circumstances U.S. military force will be used abroad.

I am not sure what Fein is talking about here.  The President is already using force against the Islamic State, and has been for months.  As just noted, the Paul Resolution would shrink the President’s power to use force only if the President wants to use force that is not authorized by either the Paul Resolution or Article II.  Perhaps by the phrase "Congress ... decid[ing] on when and under what circumstances U.S. military force will be used abroad,” Fein means that Congress would be authorizing force in only a limited way or for limited purposes.  But then he would be wrong to say that this has never been done in 73 years.  Fein should look at the AUMFs (among others) for Formosa (1955) (authorizing force “for the specific purpose of securing and protecting Formosa, and the Pescadores against armed attack”), Lebanon (1983) (authorizing President “to continue participation by United States Armed Forces in the Multinational Force in Lebanon,” subject to many limitations, including a time limitation); Iraq 1991 (authorizing President “to use United States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of [numerous] Security Council Resolutions,” subject to two policy determinations related to the necessity of the use of force); and Somalia 1993 (“Congress approves the use of United States Armed Forces in Somalia for” specified purposes, including “protection of United States personnel and bases” and the “provision of assistance,” with many limitations).

The bottom line: Senator Paul's Resolution got a lot of press because it included a broad war declaration and a narrow authorization of force.  But the declaration of war (for reasons I explained earlier) would do almost no work, and the authorization of force narrows what Congress approves but does nothing to stop most (if not all) current presidential uses of force under Article II.