Errors and Misconceptions About the Obama Draft AUMF

By Jack Goldsmith
Monday, February 16, 2015, 3:03 PM

Much of the discussion in recent days about the Obama draft AUMF for ISIL contains mistakes and misconceptions, at least as I see matters.

The Draft AUMF Does Not Limit The President.  The biggest canard has come from several Republicans who continue to talk as if the President has proposed an authorization that limits his authority.  John McCain said yesterday of Obama’s AUMF, “To restrain him in our authorization of him taking military action, I think, frankly, is unconstitutional and eventually leads to 535 commanders in chief.”  But the Obama draft AUMF does not restrain the President.  The ground troops and time limit limitations in the Obama draft limit only what that AUMF authorizes.  They do not limit the President’s entirely independent and temporally unbound power to use ground troops under the 2001 AUMF (which the President did not propose to repeal).  Nor do they affect his probably narrower but still independent authority to introduce ground troops under Article II.  If the President wanted to send 100,000 troops to Iraq tomorrow – which he certainly doesn’t want to do – he has full congressional authorization to do so under the 2001 AUMF, at least as his administration interprets that law.  Nothing in the draft AUMF touches that power.  (The only possible legal impact of the draft AUMF is to expand the President’s powers under the 2001 AUMF by extending Congress’s overall authorization to use force to authorize force for three years against non-Al Qaeda, non-ISIL terrorists and terrorist organizations that fight “alongside ISIL,” as well as “any closely-related successor entity” to ISIL.  (See Section 5 of the draft AUMF.))

The Draft Resolution’s Limits Are Not Unconstitutional.  McCain is also wrong to say that the limitations on the draft authorization would be unconstitutional.  They would not be.  Some of Congress’s very first authorizations of force, in the quasi-war with France in the 1790s, authorized the President to use only limited military means (U.S. armed vessels) against limited targets (certain French armed vessels).  The Supreme Court recognized these limits in Bas v. Tingy.  Justice Chase noted that Congress “authori[z]ed hostilities on the high seas by certain persons in certain cases,” but  gave “no authority ... to commit hostilities on land; to capture unarmed French vessels, nor even to capture French armed vessels lying in a French port,’” and where Justice Washington described this type of war as a “limited,” “imperfect,” or “partial” one – that is, a war “confined in its nature and extent; being limited as to places, persons, and things.”  As Curt Bradley and I explain (p. 2073-2075, and elsewhere in paper), “most authorizations to use force in U.S. history have been of this limited or partial nature.”  For more on the constitutionality of this longstanding practice, see the evidence and arguments in this article by Barron and Lederman.

Confusing Strategy With Legality.  A lot of the Republican talking points confuse legal issues with the President’s strategy.  “I don't believe that what the president sent here gives him the flexibility or the authority to take on this enemy and to win,” said Speaker Boehner, in a typical formulation.  But again, the President has the flexibility and authority (under the 2001 AUMF and Article II) to do whatever he thinks is necessary to defeat ISIL, and the draft AUMF does not affect this power.  He just doesn’t want to exercise his ample authority as aggressively as the Republicans would like.  A full-blown, unqualified authorization against ISIL will not change this fact.  The President could still use whatever limited force he sees fit.  This might be a failure of strategy or (or perhaps tactics), but there is no lack of legal authorization or flexibility underlying the President’s reticence.  Nor can the draft authorization in any way tie the next President’s hands, at least if the next President adopts the same interpretation as Obama of the 2001 AUMF.   Republicans should stop confounding law and strategy.

Congress Is Not Abdicating its Constitutional Responsibilities if it Declines to Authorize the President to Use Force Against ISIS.  Ruth Marcus maintains that a “failure [by Congress] to approve a war authorization would represent an abdication of constitutional responsibility.”  But of course Congress does not have a constitutional duty to approve force authorization requests from the President!  (I wonder if Marcus thinks Congress would have abdicated its constitutional responsibility if it said “no” to Iraq in 2002 or Vietnam in 1964, or put time limits on those AUMFs?)  Congress has the constitutional discretion to say yes, or no, or to modify the President’s authorization.  Sure, many in Congress are playing politics with the draft AUMF, and not just the usual kind.  Perhaps Marcus thinks Congress is shirking because she thinks it should be on the record one way or the other with respect to the Islamic State.  But a rejection is a vote on the record.  And the broader point is that President Obama has given Congress space to play more games than usual by sending up a meaningless AUMF that Congress can ignore or reject with political impunity since it knows that the President has ample independent authority and would continue just as he is now if Congress fails to approve his request.

On Skepticism About the Sunset Provision.  This last point is a partial response to Marcus’s skepticism about sunset clauses.  She doubts that Congress will renew the ISIL-specific authorization after 3 years.  I believe she is wrong.  But if she proves to be right, it will be because (a) the conflict turned out badly, in which case the sunset was a good idea, or (b) a failure to renew would change nothing in terms of the President’s authorities as long as the 2001 AUMF remains on the books.  On this latter point, I have no doubt that if we were at war with a group as threatening as ISIL, and if the expiration of a sunset meant that the President would lose authorization to defend the nation, Congress would step up to the plate and approve because constituents in most districts would demand so.  It is only because this ISIL-specific authorization is meaningless (in the sense of not affecting the President’s authorities) that a majority in Congress could even consider – for various different political reasons – saying no.  (Unless, as mentioned above, things go very badly and Congress decides to change course.)

Marcus also says that “Since an 1819 authorization to use force against pirates, there have been only two resolutions with time limits, Lebanon in 1983 and Somalia in 1993.”  I am not sure what this proves, since that is two of the last five.  And more importantly, we’ve recently seen that authorized wars can go on quite a long time, and change in nature quite a lot, without further legislative review. The conflict against Al Qaeda that began on 9/11 and that continues to grow with the rise of ISIS is the longest in American history, and threatens to continue indefinitely.  In this respect past AUMFs are little guide.  The reason for a sunset on the ISIL authorization and any revised al Qaeda authorization is (as I have said before) to promote democratic deliberation, not to artificially end the conflict.  But democratic deliberation is not easy to spark if approval or disapproval of the authorization is meaningless because the President has an independent source of congressional authority.