The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A few days ago, I wrote about the Biden Administration's recent air strike in Syria, targeting pro-Iranian militia groups that had earlier attacked US forces. While I argued that this specific air strike did not violate the Constitution, I also emphasized that the broader US military intervention lacks congressionally required authorization, and also violates the 1973 War Powers Act. For reasons outlined in my earlier post and various previous writings, addressing this problem is vital for both legal and pragmatic reasons.
I highly doubt anyone in the White House read my post. But they might have been influenced by similar concerns expressed by others, including several Democratic members of Congress. Regardless, the administration now indicates that the president would like to work with Congress to repeal the 2001 and 2002 Authorizations for the Use of Military Force (AUMFs), which successive administrations have stretched in many ways, and "replace [them] with a narrow and specific framework that will ensure we can protect Americans from terrorist threats while ending the forever wars." Some members of Congress from both parties have also proposed repealing and replacing the current AUMFs, including in a recent bill introduced by a bipartisan group of senators, led by Tim Kaine (D-Va.) and Todd Young (R-Ind.).
If these efforts pan out, they could help bring an end to the era of wars waged by the executive without proper congressional authorization. But the failure of previous efforts along similar lines provides grounds for skepticism that this will work. For example, the Obama administration's 2015 effort to secure an AUMF for the Syria intervention quickly foundered in Congress.
The hard truth is that presidents are rarely willing to accept meaningful constraints on their powers, and (with a few principled exceptions) most members of Congress are all too ready to let them get away with that. The 2015 draft AUMF presented by Obama included few actual limits on presidential power, and failed in Congress, in part for that reason. Donald Trump, too, was unwilling to accept anything in the way of meaningful limitation, and vetoed a congressional effort to do so.
Whether Biden's initiative turns out to be an exception to these trends remains to be seen. His willingness to actually repeal and replace the 2001 and 2002 AUMFs, as opposed to merely augmenting them with new authority, seems promising. But the devil in these matters is often in the details. Those will determine whether the AUMF really does provide proper authorization for current efforts in Syria, while also avoiding giving the White House a potential blank check to intervene anywhere it wants. It will be interesting to see what kind of new AUMF the administration proposes (if any) and how it fares in Congress.