President Obama’s draft “Authorization for Use of Military Force” against ISIL is not merely dishonest, it’s unconstitutional.
It is not a serious effort to receive authorization to use military force against this horrendous al Qaeda offshoot. Such authorization already exists—as the administration concedes—by virtue of Congress’s sweeping post-9/11 Authorization for Use of Military Force (AUMF) of September 18, 2001. The 2001 AUMF has been the authority under which the administration has waged its (limited) air war against ISIL for the past six months. Rather, the whole point of Obama’s painfully obvious ploy is to try to de-authorize the use of military force against ISIL —to constrain, hamstring, limit, and hobble the war on terror directed against violent Islamist extremism: No combat ground troops; a three-year time limit on any use of force; a narrow definition of who counts as an ISIL ally or “associated force” against whom (limited) force can be employed; and an explicit repeal of the separate 2002 authorization for use of force in Iraq.
As many have noted, each of these provisions constitutes a proposed narrowing of existing legal authority to wage war against ISIL and any person or group conspiring with it. Obama’s authorization authorizes nothing. It is, in legal effect, entirely a proposed retreat. It might not technically repeal the existing authority under the 2001 AUMF—in form, it merely proposes to grant a much, much smaller authority—but that is the spirit and intent of Obama’s draft. There is, moreover, a small but not insubstantial danger that the proposed limited grant of authority could be construed – either legally or politically – as an implied negation of, or limitation on, the September 2001 AUMF.
But of even greater concern than the Obama resolution’s obvious dishonesty is its flagrant unconstitutionality. Not only does it implicitly de-authorize force, but it would do so unconstitutionally, by purporting to limit the military tactics and choices of the commander in chief in time of war.
The Constitution, Congress, and the President’s War Powers
The administration’s draft disingenuously purports to grant authority to use armed force, but specifically disclaims any authority for “the use of the United States Armed Forces in enduring offensive ground combat operations.” Initial commentators have focused on the vagueness of this convoluted disclaimer: What constitutes “enduring” combat? When are ground operations “offensive”?
But the more serious problem is that the provision is flatly unconstitutional. The resolution’s proposed withholding of authority for ground combat forces and operations, if read as prohibition of the use of such force, would be flatly unconstitutional. It would be a grotesque interference with the exclusive constitutional power of the commander in chief to conduct war in accordance with the forces and tactics he deems best calculated to achieve the desired military objectives. The constitutional defect is not cured by the fact that it is the president himself who is inviting the Congress to trench upon his own constitutional authority as commander in chief.
Under the Constitution, the power to declare war—to authorize offensive military hostilities against a defined enemy—belongs to Congress, not the president. The president retains the power to repel actual or imminent attacks on the nation, but he has no authority to initiate the use of offensive military force on his own.
President Obama does not understand this basic constitutional point, either. His Justice Department’s legal justification of the unauthorized Libya air war was that the president may initiate offensive military hostilities on his own authority—as long as he does not consider it to be a “war”! Obama recycled the same constitutionally incompetent theory in 2013 when proposing limited air strikes against Syria’s Bashar al-Assad, but later asked Congress for authorization anyway – and then later yet abandoned the whole effort to punish the crossing of the “red line” he had drawn (a decision probably contributing greatly to the ISIL mess in Syria and Iraq today).
But just as the framers vested in Congress the decision to initiate war, they vested in the President the exclusive constitutional power to conduct war, once authorized, with all the military resources at his disposal. The President, not Congress, makes decisions as to how to wage a legally authorized war, including all matters of military strategy, tactics, rules of engagement, diplomacy, armistice, relations with allies and adversaries, and policies toward captured enemy combatants. The president, as constitutionally designated commander in chief of the nation’s armed forces, chooses the military targets, the military means, the amount of force to be employed, the military objectives, and even whether and when to end hostilities.
The Constitution’s division of powers could not be clearer. Congress declares wars; the president fights them.
Congress’s power to authorize offensive military hostilities against a defined enemy is an on-off switch, not a “dimmer switch.” Congress may not adjust, monitor, and micromanage the degree and manner in which such hostilities are conducted. Because it can flick the switch on or off, Congress arguably has the power to specify that an authorization terminate after a specified time—to put the lights on a timer, as it were. But managing the conduct of war, while authorized, is an entirely different, entirely unconstitutional matter.
A restriction on the use of ground forces, within a general authorization for use of military force is, thus, a flatly unconstitutional restriction on the president’s constitutional power as commander in chief. It is also nonsensical as a matter of military strategy: it tells the enemy, in advance, how we will and will not fight, and communicates the limits of our seriousness.
The Real Purpose of the New “Authorization”
What could Barack Obama be thinking?
It cannot be that the president supposes he needs the new proposed resolution to confer upon him authority to fight ISIL. The administration has relied on the September 2001 AUMF support its efforts against ISIL for the last six months. That resolution is, legally, fully sufficient to justify waging war against this organization: It authorizes the president to use of “all necessary and appropriate force” against any and all “nations, organizations, or persons” that “he determines” to be connected to the network of organizations and persons responsible for the attacks of September 11 or to have “aided” or “harbored” al Qaeda or its allies. ISIL easily fits within these categories. ISIL (also known as ISIS or “Islamic State”) is an extremist offshoot of al Qaeda in Iraq—a reprehensible chip off the al Qaeda block.
The 2001 AUMF is sweeping in its terms. It lacks any time limit and was explicitly designed to provide broad future flexibility to wage war, by all means necessary, against those who would commit “future acts of international terrorism against the United States.” The administration has consistently said that it already possessed full legal authority to wage war on ISIL. The existing AUMF does not require the use of ground troops for offensive operations against ISIL; the president always retains the discretion to use—or not to use—ground forces, as he judges appropriate to the military situation.
So what is the point of the new resolution? Simply this: Obama’s “authorization” request is designed to curtail existing legal authority to wage war on ISIL and to handcuff future presidents in the exercise of their constitutional authority as commander in chief in waging war against ISIL. This is horrible public policy being promoted by means that are shockingly dishonest. But lay those points aside. Our point is that it is unconstitutional: The president is seeking to induce Congress to restrict by legislation (i.e., the resolution) powers given to the presidency by the Constitution. (Perhaps it is also worth noting that his resolution seeks to gratify a hard-left political constituency by formally repealing the Iraq war authorization.)
This is an astonishing move for a president to make. Mr. Obama is the first president in American history to ask Congress for a resolution explicitly tying the hands of the nation’s constitutional commander in chief behind his back—and he is doing that in the context of a war against a vicious, implacable, barbaric foe that murders civilian women relief workers, burns alive Jordanian pilots, and beheads scores of Coptic Christians.
A Straightforward and Constitutional Alternative
How should Congress respond?
Congress should immediately scrap the Obama draft in its entirety. It should pass a straightforward resolution along these lines:
The Congress reaffirms the grant of Authorization to Use Military Force of September 18, 2001 in all respects, and specifically authorizes the use of all necessary and appropriate force against ISIL (also known as “ISIS” or “Islamic State”) and all persons, organizations, or nations that the President determines to be allied with, harboring, or assisting ISIL in any fashion.
Such a resolution would confirm existing legal authority, not weaken it. It would affirm the administration’s legal justification for its war efforts against ISIL over the past six months. It would uphold the future flexibility of this president, and his successor, to fight ISIL in the manner appropriate to the circumstances at the time. It would not encourage or embolden our enemies. It would not demoralize our allies. And it would be fully constitutional.
Would President Obama actually veto such an authorization? If so, such a veto would demonstrate only that this president does not truly wish to fight and defeat ISIL. It would show that the point of his “authorization” proposal was to fight and defeat future presidential power to wage war against this ruthless group of murderers and its allies.