A number of leading scholars have recently published
very useful overviews of the war powers issues raised during the Obama
administration. Interestingly, all three
discuss the administration’s military operation against ISIS and whether it was
justified by the 2001 Authorization to Use Military Force, albeit from somewhat
different perspectives. Jack Goldsmith
and Curtis Bradley offer a doctrinal analysis; Mike Ramsey keeps original meaning
in play as a baseline and looks closely at the administration’s OLC opinions; I
provide more own take here. My contribution
is part of a symposium on war powers to be published in the Drake Law Review, my thanks to Mark Kende for inviting me. To boil down my argument, I
think the administration was justified in basing the ISIS operation on the
AUMF, not only because of its broad language (and the initial connection between
al-Qaeda and ISIS), but because of the uniform political support provided by
each presidential election subsequent to 9/11.
I show how the steady support of presidential candidates of both parties
for the effort against al-Qaeda and its associates (a support that continues today)
is constitutionally relevant to concluding that the Obama administration was justified in continuing to rely on the AUMF.