Why the AUMF for the Islamic State Has Stalled

By Jack Goldsmith
Friday, March 20, 2015, 9:36 AM

“Congress is stalled in its effort to pass a separate resolution authorizing military force against the Islamic State of Iraq and the Levant,” write Austin Wright and Bryan Bender in a good Politico story two days ago.  The conventional explanation for the stall is, as Wright and Bender note, that “congressional action has gotten bogged down in partisan rancor and divergent viewpoints over what the war should try to accomplish, how long the administration should be authorized to wage it, and what level of force will be required.”  But their story pushes beyond this conventional wisdom and points to deeper explanations.

First, absolutely nothing of substance turns on the new AUMF.  The President has been using force against the Islamic State in Iraq and Syria since last August, and he has justified these actions since last September under the 2001 AUMF (among other sources).  This interpretation of the 2001 AUMF was controversial.  But it was made openly in public and it has not caused a national outcry or congressional backlash.  One might say that the nation has effectively acquiesced in the President’s actions – politically, if not legally.  As a result, as a practical matter, the President has all the authorities he needs to conduct the fight against IS.  “We don’t need a new AUMF to do our jobs,” a “defense official” told the Daily Beast last month.

Second, because the Executive branch doesn’t need the AUMF, neither Congress nor the President feels any pressure to enact it.  The Obama administration has long taken a passive attitude toward getting a new AUMF for ISIL.  Even since the President sent up his AUMF proposal to Congress, the administration has not exactly rushed Congress to pressure it for enactment (and has been especially feckless in getting members of the President’s party on board.  Obama administration officials “have invested no political capital in this whatsoever,” Representative Salmon said in Politico.   (This contrasts sharply with other AUMFs that Presidents really needed, politically or legally, to support a use of force.)  Because no concrete national security issue is at stake in the passage of the AUMF, and because the President is not pushing hard for it, Congress feels no compulsion to act.  The “biggest obstacle” to enacting the new AUMF, said Representative Schiff in the Politico story, is the administration position “that they don’t need” the new AUMF.  “That has given Congress an excuse to shirk its responsibility,” he added.

Third, when members of Congress feel no compulsion to act on national security grounds, they are free to play politics.  For many Democrats, this means avoiding a vote in support of a new authorization of force at all costs, even one that by its terms expires in three years.  For many Republicans, that means complaining that the President’s draft AUMF places too many restraints on the presidency – when in fact, if passed as drafted, the AUMF would expand, not contract, presidential power.

For all of these reasons, Representative Schiff is right to be “increasingly concerned that Congress will take the path of least resistance and least responsibility and let the resolution die.”