The Senate Foreign Relations Committee hearing this Wednesday on the proposed 2018 Authorization
for Use of Military Force (AUMF), co-sponsored by Senators Bob Corker (R.-Tenn.) and
Tim Kaine (D-VA), was in many ways a model of how democracy should work. The witnesses were expert and prepared, the Senators’
questions were thoughtful and informed, and everyone who participated was sober
and respectful. Would that we approached
more of our national decision-making this way. At the same time, it became apparent that senators’ views about whether
this bill would be more or less effective than the existing 2001 AUMF in
constraining presidential power to use force are based on misapprehensions about
where we are under current law. (Recall the current AUMF, passed just after the attacks of 9/11, has since been invoked as the law authorizing everything from the invasion of Afghanistan and the detention of prisoners at Guantanamo Bay; to drone strikes in Yemen, Somalia, Libya, and Syria; to the military detention of U.S. citizens (including one currently held in U.S. military custody in Iraq) accused of membership in one of the terrorist groups the law covers.) Herewith, some assertions (several of them
from both sides of the aisle) made Wednesday that could use some important qualifications, constitutional qualifications included.
The 2001 AUMF has been
interpreted so broadly, presidents have been able to rely on it to justify
essentially any use of force they want. While there is little doubt more than one
president has offered implausibly sweeping interpretations of the 2001, the
existing law functions to constrain presidents in several demonstrable
ways. Most immediately, there is ample
evidence from public accounts of both the Bush Administration (contemplating the
invasion of Iraq) and the Obama Administration (contemplating, for example, the
targetability of Al Shabaab in Somalia for a period of years) in which the administrations
concluded the 2001 AUMF was insufficient authorization for initiatives at the
edge of relevance to the attacks of 9/11. Identifying instances in which presidents have
used force under the 2001 AUMF is not enough to make the argument that it has
not constrained; on the question of constraint, understanding when and whether
presidents haven’t used force is at least as important. Further, the meaning and scope of the 2001
AUMF has long since been informed by a set of judicial decisions that have
already – and appear poised to increasingly – guarantee additional limits are
imposed on presidential authority. Most
prominently at the moment, the 2001 AUMF requirement (absent in the new bill) that detainees held under
the statute be part of groups in some respect related to the attacks of 9/11 is
the subject of very active litigation in federal courts in Washington, in
which the administration’s authority to detain ISIS members under the law is
substantially in question. Similarly,
the Supreme Court’s 2004 ruling in Hamdi
v. Rumsfeld, requiring that the “necessary and appropriate force”
authorized by the AUMF be informed by the Geneva Conventions and the
international law of war has required (and will continue to require) courts to consider
when detention authority under the law expires (a question even the D.C.
Circuit now understands must be resolved as a matter of statutory
interpretation by the courts). (That the
Corker-Kaine bill fails by its terms to reaffirm the requirement that it be
interpreted with reference to the law of war is one of several ways in which Corker-Kaine
may be read as troublingly broader than the current AUMF.) Because Corker-Kaine
would repeal the 2001 AUMF, judicial decisions interpreting that law would no
longer have certain relevance.
The Corker-Kaine bill’s
requirement that the president report to
Congress every 4 years on the use of military force under the law, following
which report Congress has 60 days to consider modifying the authorization to
use force under expedited legislative procedures, will ensure that future
Congresses debate the necessity of ongoing war far more frequently than the
does the 2001 AUMF (which contains no such reporting requirement). As the witnesses Wednesday noted, the
President is already required to report new uses of force under current law,
and there is nothing at all in the law that has prevented Congress from reconsidering
and modifying the 2001 AUMF at any time.
The notion that Corker-Kaine will make it more likely that Congress will
regularly debate the state of the war is thus based solely on the expectation
that the availability of expedited procedures (by which, for example, the
Committee on Foreign Relations can only consider acting for so long before the
matter is referred to the full Senate) gives members an incentive to engage in
deliberation on the state of the war they have not otherwise had. History – most notably the inclusion of
analogous “Congressional Priority Procedures” in the 1973 War Powers Resolution
– should provide ample reason for doubting that such procedural mechanisms much
alter the incentives of members of Congress otherwise not disposed to
expressing their views on the state of a war. Indeed, by
authorizing the President to add groups to the list of enemies against whom
force may be used without first returning to Congress (as the Corker-Kaine bill
does), the bill removes perhaps the most powerful incentive there is for
Congress to engage on a question of war – namely, the existence of an
identified, pressing national security threat that the President asks Congress
urgently to address. In this respect, if
Congress were most interested in maximizing incentives for legislative
engagement, it would seem more effective to include the reporting and expedited
procedure provisions while eliminating the delegation of power to the President
to add more groups to the list of enemies whenever he deems it necessary.
Ordinary constitutional concerns about
excessive or unconstrained delegations of power by the Congress to the
President do not arise on questions of war power, as to which the President has
significant constitutional authority of his own. The Supreme Court has long recognized as among
first constitutional principles the idea that one branch of government could
not simply give away all of its authority to another without doing fatal harm
to the Constitution’s separation of power.
At its height, that non-delegation rule never prohibited Congress from delegating
the Executive Branch power to perform certain functions; but it did require
that Congress provide some “intelligible principle” by which the Executive
could act while still constrained by Congress’ will. And while it is true the Court has not declared
an Act of Congress wholly unconstitutional on non-delegation grounds for
decades, the Court today regularly cites non-delegation concerns as grounds for reading especially
sweeping grants of power to the executive narrowly. In this respect alone,
Corker-Kaine proponents should be concerned about a variety of new litigation risks
this bill creates.
Critically,
and contrary to the suggestion at the hearing, there is no certainty at
all that the Court will find such concerns less salient just because the
President has relevant constitutional authority of his own in this realm. The idea that the Court is untroubled by
broad delegations of power to the President in foreign affairs is most commonly
traced to the Court’s 1936 decision United States v. Curtiss-Wright Export
Corp., a non-wartime case in which the (pre-New Deal) Court upheld a statutory
delegation of power to the President to place an embargo on arms sales to
certain countries. Curtiss-Wright’s once-often-cited
broad language about presidential power in foreign affairs has been thoroughly
repudiated by the Court’s words and actions in the years since 1936, and that
case (and the tiny handful of other cases sometimes cited with it) involved
delegations of power that pale in comparison to the Corker-Kaine bill
today. Like the 2001 AUMF, the
Corker-Kaine bill contains no geographic restrictions, limits on duration, or
on the amount or kind of force to be used (from drone strikes to ground
invasion). Well beyond the 2001 AUMF,
Corker-Kaine also delegates to the President the power to add more enemies to
the list of those with which we are at war.
And unlike the 2001 AUMF, which authorized force “in order to prevent
any future acts of international terrorism against the United States,” and the
separate 2002 AUMF, which authorized the President to use force in Iraq “in
order to,” among other things, “enforce all relevant UN Security Council
resolutions regarding Iraq,” the Corker-Kaine bill contains no “in order to”
clause of any kind. Indeed, unlike
existing law, this bill authorizes the President to use force not only against
current members of our enemies’ forces, but also against any person that “the
President determines … has been a
part” of any enemy force. That is to say,
even if Al Qaeda, ISIS, and any others later designated were to cease to exist
as organized groups – even if they were militarily defeated in any ordinary
sense of the word, even if “war” in any constitutional sense is over – the
President could still use force. Such a
delegation of power has no historical analogue, dwarfs the statutes considered
in case law of old -- and especially relevant for what non-delegation advantage a president may claim in this realm, stretches far beyond any conception of independent
Article II “war” power any President might constitutionally claim.
After 17 years of war, Congress
should be commended for at long last moving to reassert its constitutional duty
to decide when the United States will use force. But as the hearing Wednesday made apparent,
the Corker-Kaine bill risks being the moment when Congress asserts its authority
only to create a far bigger constitutional problem than already exists.