War Powers Irresolution
By: Colin McElhinny
The one-year anniversary of the commencement of the U.S. military campaign against the Islamic State passed with little fanfare in August, overshadowed by reactions to the Iran nuclear agreement. The war continues to be fought without an explicit authorization from Congress, as President Obama’s proposed authorization for the use of military force (AUMF) against the Islamic State of Iraq and Syria (ISIS) has languished after being introduced earlier this year. Unfortunately, most of Congress seems content with the legal ambiguity of the status quo and remain loathe to open debate on a potential AUMF. How can a Congress that has been so willing to challenge unilateral executive branch moves on immigration and climate change remain ambivalent about a war being conducted without clear congressional authorization?
To be fair, the administration has gradually clarified its legal position on the justification for the campaign against ISIS over time. After early attempts to rely solely upon the president’s inherent commander-in-chief powers granted in Article II of the Constitution and the 2002 AUMF for the Iraq War were determined to be legally implausible, executive branch lawyers settled on a broad interpretation of “associated forces” via the 2001 AUMF. Relying on a 14-year-old authorization bill that was originally intended to target the individuals, groups, and states involved in the planning and execution of the September 11 attacks for operations against ISIS today is dubious at best. The fact that the legal basis for a war the United States is currently waging has received little to no oxygen in Congress is profoundly troubling.
Beyond the constitutional issues, the evaporation of meaningful congressional oversight on authorizations for the use of military force has substantive effects on policy. First, limited executive accountability increases the likelihood that the United States will enter ill-advised conflicts without comprehensive, coherent strategies. Deliberation afforded through legislative debate can help vet policy options, compel strategic prioritization, and generally improve decisionmaking over the use of force. Congress serves as a critical bulwark against misguided, unrestrained presidential power. Explicit congressional approval can also amplify signals of U.S. commitment, credibility, and legitimacy to allies and adversaries. Unity among the political branches signals resolve and durability in policy that is critical in organizing international coalitions and maintaining deterrence. Domestically, the public is more likely to support wars that are backed by the president and Congress and have been subjected to thorough debate before being prosecuted. A reinvigorated congressional role can help improve decisions made over initiating military engagements and bolster our chances of succeeding in the conflicts we do fight.
Congress needs to seriously reengage the administration on use of force authorization questions and stop relinquishing any say over the legal framework upon which our nation fights its wars. Rather than being treated as a “nice to have” luxury, clear congressional authorization for military operations should instead be viewed as a bare minimum requirement. Even if the 2001 AUMF convincingly provides adequate leeway for current operations against ISIS, it is not prudent for Congress to continually sidestep its responsibility for authorizing military force. Providing the legal backing for the war against ISIS with even a modicum of the amount of scrutiny that has been placed on the Iran deal would alone be a tremendous step in the right direction.