The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Obama administration's proposed congressional authorization for the use of military force against ISIS has created a rare moment of unity among congressional Democrats and Republicans: both groups seem to hate it (or at least view it with suspicion), albeit for very different reasons. Democrats worry that it gives the president too much discretion to use ground troops and fight an open-ended war. Republicans have the opposite concern, believing that proposal's ban on "enduring offensive ground operations" is too restrictive.
Academic commentators have also been generally skeptical. Harvard law professor Jack Goldsmith argues that the proposal doesn't impose any meaningful limitations on the president, because it doesn't take back the administration's previous claims that it can wage war against ISIS based on the 2001 AUMF against the perpetrators of the 9/11 attacks and the president's inherent authority. Noah Feldman has a similar view. John Yoo, by contrast, claims that the AUMF is both unnecessary (because the president has inherent authority to wage this war, and also has it under the 2001 AUMF) and unduly restrictive. Compared to these forceful critiques from both politicians and academics, my own initial commentary on the proposal (which was also skeptical on some points) makes me almost an administration booster.
Some of the criticisms of the draft AUMF are well-taken. Others, by contrast, are overblown. And Congress can potentially modify the administration's proposed language to address the more serious problems.
Like Goldsmith and Feldman, I am troubled by the administration's refusal to repudiate extremely dubious claims that it already has the authority to wage war against ISIS under the 2001 AUMF and theories of inherent presidential power. Whatever the administration's intentions, it is possible that its request for an ISIS-specific AUMF and the enactment of such a measure by Congress will be perceived as a rejection of such claims of preexisting presidential authority. In any event, there is an easy fix for this problem: Congress can simply include a provision in the ISIS AUMF stating that this legislation is the exclusive source of presidential authority to wage war against ISIS and associated forces (perhaps with the exception of responding to direct attacks on US forces and territory). Such an amendment would also help mitigate my own concerns that enactment of the AUMF might legitimate Obama's previous unconstitutional actions in waging this war (and the 2011 war against Libya) without congressional authorization. To that end, Congress should also delete language in the AUMF's preamble implying that Obama had inherent authority to initiate the war.
Most of Yoo's critique is based on his claim that the president already has the power to wage war against ISIS based on the 2001 and 2002 AUMFs, and his longstanding argument that the president, in any event, has the authority to initiate wars without congressional consent. I think Yoo is wrong on both counts, for reasons I outlined here. I do find myself in rare agreement with Yoo on one point: It is unwise to impose a three year time limit on operations against ISIS, since it enables the enemy to try to wait us out. If we are serious about defeating ISIS, we should not impose arbitrary time limits on the task. If we are not, then Congress should not authorize the war at all. This problem, too, has an easy fix: Congress can simply delete the three year limitation from the draft. Even if it does so, nothing prevents President Obama or a successor from withdrawing US forces after three years, or even sooner, if he believes that is the best strategic option. Eliminating the three year deadline merely prevents him from being forced to withdraw, regardless of conditions on the ground.
Like both congressional and academic critics, I find it difficult to understand the meaning of the provision forbidding "enduring offensive ground operations." As far as anyone can tell, this is not an established legal or military term. I have no idea how to distinguish "enduring" and "offensive" ground operations from ground operations that are defensive, not "enduring," or both. As a practical matter, however, the president could likely justify almost any realistically likely use of ground troops as either temporary (i.e. – not really "enduring"), defensive (and therefore not "offensive"). Therefore, while I am no great fan of this language, I don't think it's terrible if it stays in. I can understand some congressional Democrats' views that there should be much tighter restrictions on the use of American ground forces. But it seems to me that any serious effort to defeat ISIS cannot, in advance, rule out the possibility of using them, especially since efforts to defeat ISIS without it have had mixed success at best.
Overall, the Obama AUMF seems poorly drafted and designed. But its most serious flaws can probably be fixed – if Congress has the will to do so. Moreover, the debate over the draft AUMF does serve the useful function of focusing more attention on the limits of presidential power to initiate war. We are still a good distance from where we need to be on that score. But, hopefully, this debate will be a step forward towards reestablishing the norm that presidents may not start wars without congressional authorization. As then-Senator Obama put it in 2007, "[t]he President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."