Posted by: Justin Nelson, Wyatt Rosette, Afsanieh Rassti, Ryan Rempp, and Jennifer Murphey
April 23, 2015
President Obama has committed United States military forces to the war against ISIS in both Iraq and Syria. The question is whether or not he has done so constitutionally. To date President Obama has relied primarily on the prior Congressionally enacted Authorizations for the Use of Military Force. Specifically for this issue, it must be determined (1) whether President Obama needed new congressional action in the form of a declaration of war, and (2) whether President Obama needed new congressional action in the form of a new Authorization for the Use of Military Force (AUMF). President Obama probably did not need new congressional action in either form because (1) based on the historical actions of the executive branch, it appears that the official label of a declaration of war has become Constitutionally unnecessary so long as there is a form of congressional approval, and (2) the text of prior the two prior relevant authorizations allow for broad interpretation to authorize President Obama’s actions.
The United States government is authorized under the Constitution to declare and engage in war. Such powers asserted in the Constitution are commonly referred to as the war powers. Article 1, Section 8, Clause 11 of the Constitution vests in Congress the power to declare war.
Article 2, section 2 of the Constitution declares the President to be commander in chief of the Army and Navy, and of the militia of the several states, when called into the actual service of the United States.
Although the Constitution is ambiguous in the allocation of war-making power as between the President and Congress, the role of the President can be reconciled by understanding what the drafters may have meant at the constitutional convention and by determining the difference between the words “war” and “sudden attack.” The drafters of the constitution decided to allocate congress the power “to declare war” instead of allocate congress the power “to make war.” Mr. James Madison reasoned that this change of word would allow for the president to be able to repel attacks without congress’ permission. What is the difference between “war” and “sudden attack?” The difference with those words allow the President to repel sudden attacks without the declaration of congress even though he would not be able to initiate a war without a declaration from Congress.
Though the Constitution does not directly express that the President has the power to declare war, the interpretation and understanding of these powers has somewhat evolved from the Civil War era to modern times. More specifically, the procedural manner in which the federal government can authorize the use of military force has been clarified during this period of time. The textual language of the Constitution concerning the delegation of war powers, and the unfolding of history since the adopting of the Constitution have spurred debate over exactly how the three branches of federal government are to lawfully commit to military action. At the heart of the debate is determining the scope of power of the executive branch relative to the other branches of government. This is due to the concern that the executive branch has experienced an enlargement of power with respect to initiating or engaging in military action, potentially going beyond the powers vested in Article 2 of the Constitution.
YOUNGSTOWN SHEET & TUBE CO. V. SAWYER
In Jackson’s liberal realist concurrence from the case Youngstown Sheet & Tube Co. v. Sawyer he gives one of the most important executive opinions. He writes on the three-category system that defines the scope of executive authority and how each differs depending on the intersection with different branches. Each Category is as follows: Category 1: when the president acts with express/implied Congressional delegation (P = E + C). . Category 2: when the President acts with Congressional silence (P = E). Category 3: When the President acts contrary to Congress’s will (P = E – C).
In President Obama’s situation I would consider his efforts to combat with ISIS as repelling to sudden attacks. ISIS is a dangerous war group that has the potential to do a great deal of damage to America and ISIS has already captured and murdered many American civilians. It seems that the drafters would have intended for the president to be able to protect our country by allowing him to repel war groups like ISIS. I do not think that he would need a congressional declaration to have enacted these efforts against ISIS.
In regards to Jacksons three categories, President Obama is not directly acting contrary to Congress’s will so his conduct will not be considered as a category 3. It seems to me that President Obama is currently acting with Congressional silence therefore his conduct would place him in category 2. Because each military branch is now involved with this situation I think it would be important for President Obama to get a Declaration from Congress soon. The drafters of the constitution would not want President Obama to declare war with ISIS. They would not mind that he is sending war efforts to combat and repel their attacks. However, President Obama should try to get into category 1 and act with either express or implied congressional delegation to engage with ISIS.
PRESIDENT OBAMA DOES NOT NEED NEW CONGRESSIONAL ACTION IN THE FORM OF A DECLARATION OF WAR
In order to determine whether President Obama needs new congressional action in the form of a declaration of war, prior tensions between Congress and the executive branch with respect to authorizing and engaging in military conflict must be examined. It is evident that there was significant debate during the Constitutional Convention over exactly how much power the executive branch should be granted with respect to war. Though the President of the United States was granted both the chief of state and head of government powers, the Constitutional Convention ultimately granted the power to declare war to Congress instead of the executive branch. The power of Congress to declare war is expressly enumerated in Article 1, Section 8, Clause 11 of the Constitution. The President may sign or veto a congressional act, including a declaration of war.
It is also evident however, that although the executive branch could not declare war, it could repel an invasion unilaterally and without the authorization of Congress. Therefore, if it were apparent that the United States was invaded and an emergency existed, the President of the United States could use military troops to repel such an invasion without first having approval from Congress. Such a power has proved to be useful, especially during times when Congress was not sitting and therefore could not declare war at a meaningful point in time.
President Abraham Lincoln exercised the power to repel an invasion during the Civil War. The American Civil War military conflict began on April 12, 1861 when Confederate military forces fired an attack on Fort Sumter, a Union military establishment. In retaliation to this attack, President Abraham Lincoln, acting alone, called for 75,000 volunteers to help suppress the military actions of the Confederacy. Congress at this time was not in session and could not officially declare war. Lincoln, already acting on his power to repel an invasion, also decided to not call Congress into session so that he could continue to act unilaterally to combat the Confederate military forces.
Though the Civil War highlights circumstances in which the President may authorize the use of military force without Congress, Congress has exercised its power to declare war in other instances. The final declaration of war by Congress in American history occurred during World War II. On December 7, 1941, the Imperial Japanese Navy launched a surprise military attack on the United States naval base at Pearl Harbor, Hawaii. In response to this attack, all but one member of Congress voted to pass a declaration of war against the Empire of Japan on December 8, 1941. President Franklin D. Roosevelt signed the declaration the same day.
Since World War II, the United States has committed to and engaged in several military conflicts without an affirmative declaration of war by Congress. This has led to a discussion of whether a declaration of war by Congress is in fact necessary before the President can supply troops and resources during a military conflict, among other actions.
For example, both the Korean and Vietnam wars involved significant participation by the United States military. On June 25, 1950, the United Nations Security Council adopted the United Nations Security Council Resolution 82 in response to the outbreak of conflict on the Korean Peninsula. President Harry Truman, pursuant to this resolution, ordered United States troops to Korea without congressional authority. Such action has since become a form of precedent that the Executive Branch has relied on in order to commit the use of military force without congressional approval.
On August 10, 1964, both the United States House and Senate enacted the Gulf of Tonkin Resolution in response to supposed attacks on American ships by North Vietnamese ships in August of 1964. Pursuant to this resolution, President Lyndon B. Johnson authorized the use of military force without a formal declaration of war by Congress. Subsequently, the United States military involvement in Southeast Asia lasted approximately sixteen years from 1959 to 1975. American troops remained in the area after the Gulf and Tonkin Resolution was repealed, though the repeal did initiate the withdrawal of troops.
In an effort to limit instances where the executive can commit to an armed conflict without congressional approval, Congress passed the War Powers Resolution of 1973. Congress overruled President Nixon’s veto of the resolution by more than a two-thirds vote. The resolution requires that the President inform Congress within 48 hours of committing troops to an armed conflict. In addition, the resolution prohibits troops from remaining in conflict for more than 60 days, plus a 30-day withdrawal period, without an authorization of the use of military force or a formal declaration of war from Congress. Such a concurrent resolution acts as a legislative veto by Congress, and has come under question in regards to its constitutionality as a result of the United States Supreme Court decision in INS v. Chada, 462 U.S. 919 (1983).
Years after the Korean and Vietnam Wars the United States engaged in military action against terrorist organizations, as opposed to against a sovereign state. Following the terrorist attacks against the United States on September 11, 2001, the executive branch sought authorization from Congress to engage in military action. President Bush ordered military action against terrorist camps in Afghanistan after Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF) on September 14, 2001. Again, this was a joint resolution enacted by Congress and not an affirmative declaration of war.
In conjunction with this military action, the executive branch sought further authorization from Congress to subsequently invade Iraq. In response Congress passed another joint resolution, formally the Authorization for Use of Military Force Against Iraq Resolution of 2002. As a result, the United States military invaded Iraq in 2003, and officially withdrew from Iraq in 2011.
Based on the actions of the executive branch in these instances, the acquiescence of the other branches of the Federal government to these actions, and the requirements set forth in the War Powers Resolution of 1973, it appears that the official label of a declaration of war has become Constitutionally unnecessary so long as there is an alternate and acceptable form of congressional approval. Such congressional approval appears to be most commonly accepted when it is in the form of an enacted joint resolution, which is then signed by the President of the United States.
PRESIDENT OBAMA DOES NOT NEED NEW CONGRESSIONAL ACTION IN THE FORM OF A NEW AUTHORIZATION FOR USE OF MILITARY FORCE
1. AUTHORIZATION FOR USE OF MILITARY FORCE AGAINST TERRORISTS GRANTS PRESIDENT OBAMA POWER TO ACT AGAINST ISIS
The first of the two acts that the President claims grants him power to act is the Authorization for Use of Military Force Against Terrorists (AUMF) passed by Congress in the week following the terrorist attacks on the World Trade Center on September 11, 2001. The bill was passed with overwhelming support, with over 97% in both Senate and the House voting for it. Those who did not vote for the bill did not vote at all, excepting one lone Congresswoman who voted against it. The bill was drafted and passed quickly, while the country was still in shock from a devastating attack, so the President at the time, George W. Bush, could retaliate against whoever had committed this act of terror.
The AUMF is a short document at less than one page. It lists the grievances under which the authorization has been granted, states that it complies and is consistent with War Power Resolution, and grants the President power. Whether or not President Obama may use the AUMF to take military action against ISIS depends on that grant of power. The text of that grant, in full, is:
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
The two conditions placed upon the President by this grant are that (1) it may only be used against organizations that are linked to the terrorist attacks and (2) it may only be used to prevent international acts of terrorism against the United States. Number 2 is not in question. ISIS has not attacked the U.S. on its soil, but it’s no stretch of the imagination to call the beheadings of U.S. journalists acts of terror against the U.S., even though they took place in Iraq. A report by the Congressional Research Service (CRS) notes that ISIS seeks to establish a caliphate through armed conflict with the U.S., so there is reason to believe that ISIS could commit more acts of terror against the U.S. Since the second limitation is not a factor in determining whether the President can use the AUMF, the first requirement is the only one that could prevent use of the AUMF against ISIS.
The first requirement of the AUMF states that there must be some tie between ISIS and the organization that carried out the September 11th attacks, Al Qaeda. There is a link between the two organizations, according to the CRS report on groups affiliated with Al Qaeda. The report states that ISIS branched off from Al Qaeda in Iraq, but Al Qaeda disavowed any connection to the group in February 2014. ISIS likewise denies that they are an offshoot of Al Qaeda, and instead consider themselves a sovereign entity.
The connection between the two organizations is there, but tenuous, and a reasonable argument could be made for either side. Those that support the use of the AUMF against ISIS could reasonably say that the organizations are linked, despite the cut ties that came after ISIS’s creation. Allowing ISIS to escape from the AUMF’s grant of power simply by cutting ties with Al Qaeda would impose an incredibly strict limitation on the President’s power.
On the other hand, using the broader interpretation of the rule means that the President could potentially wield the AUMF against an organization or person that had any ties with Al Qaeda at any point, which gives the President the power to enter into many countries in the Middle East and Africa. All it would take is some connection to Al Qaeda or a member of Al Qaeda to allow the President to take action against the whole organization.
Congress dealt with this dilemma by leaving the determination to the President himself, as long as he reasonably considers the group to have “authorized, committed, or aided the terrorist attacks that occurred on September 11, or harbored such organizations or persons.” In other words, if President Obama reasonably believes that ISIS is an offshoot of Al Qaeda in Iraq, which is true according to the CRS report, then the AUMF permits action taken against them, in any form or location. Congress effectively gave the President free reign in the language of this very broad grant of power so that President Bush could act quickly to the unknown threat posed by Al Qaeda. Normally, an authorization like this would end along with the respective war, through a treaty, but because this action was not originally taken against a sovereign nation, but a terrorist organization, it is very unlikely that anything but a congressional repeal will end the AUMF.
President Obama’s use of the AUMF to take military action against ISIS is most likely constitutional, since the two factors required by the AUMF, an association with Al Qaeda and a threat of future terrorist actions against the U.S. are both determined by the President himself, and a reasonable argument can be made in favor of his actions on both issues. While the power to declare war ultimately rests with Congress, Congress may delegate the power to the President when the agility of executive decision making is considered essential, such as in war times. Although the AUMF may be stretched to its already-generous limits by the actions against ISIS, it remains valid until it is repealed.
2. AUTHORIZATION FOR USE OF MILITARY FORCE AGAINST IRAQ RESOLUTION OF 2002 GRANTS PRESIDENT OBAMA POWER TO ACT AGAINST ISIS
An alternate authorization that could arguably be invoked as authorizing President Obama’s air strike campaign is the 2002 Iraq Resolution. Although the Obama administration has not officially relied on the Iraq Resolution, just like the 2001 AUMF a broad interpretation to include the air strikes could be applied. The 2002 Iraq Resolution states:
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) Authorization.–The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—
(1) defend the national security of the United States against the continuing threat posed by Iraq.
Previously, this was applied broad enough to justify waging war against Saddam and against other groups that resisted the U.S. invasion and occupation of Iraq in the aftermath of his overthrow. But it is criticized as not being broad enough to justify entering into a new conflict three years after President Obama removed forces from Iraq. Furthermore, in June 2014, a National Security spokesperson Caitlin Hayden said in an email, “the Administration supports the repeal of the Iraq Resolution since it is no longer used for any U.S. Government activities.”
One legal expert, Stephen Vladeck, a professor at American University’s Washington College of Law, looked to the intention of congress at the adoption of the Iraq Resolution and stated, “I don’t think Congress back in 2002 could fairly have been said to be authorizing military force in perpetuity against any group in, or coming from, Iraq.” This is a valid argument as there must some limit to what the Resolution authorizes, if it is to serve a purpose. Also, one would consider that Congress paid particular attention to the verbiage it chose in such an authorization. Particularly, the use of the terms “continuing threat posed by Iraq” seems to refer to one single threat, not separate threats. This is likely where the criticism regarding that fact troops were removed in 2011 is rooted. Does this current air-strike campaign constitute efforts against a threat that the U.S. deemed low enough to warrant troop removal? If so, does that mean this is a new war or a resumption of the old one? It seems that, although troops were removed, there is not a definitive indication that the “threat posed by Iraq” has ceased. Nevertheless, President Obama, as mentioned earlier, has yet to officially rely on the Iraq Resolution for authorization. However, if President Obama decided to utilize the Iraq Resolution, he would need to demonstrate that the threat posed by Iraq has yet to end, that his actions are related to that threat, and that his actions defend the national security of the United States. With a broad interpretation of the Iraq Resolution’s imprecise language, President Obama’s actions against ISIS would likely be justified.
President Obama’s unilateral decision and questionable legal authority to enter the war against ISIS using past AUMF orders may seem moot at this point in time. Why seven months after military operations began against the Islamic State, the White House has formally requested that Congress authorize military operations against ISIS is quite backward and unclear. Many critics claim President Obama’s proposal to Congress is vague, too broad, and criticize that the damage has already been done. To many, the language of the proposal seems to offer the next commander-in-chief with generous war-making latitude. The full text of the resolution proposed by the Obama administration is right here.
Arguments against the new proposal language are:
- It would not repeal the 2001 AUMF and absent the repeal of this order could result in future administrations carrying out unauthorized activities that are, again, not sanctioned by new authorizations
- It would authorize armed forces against loosely defined entities in conjunction with ISIS
- It does not indicate what operations force could be limited to
- It calls for termination of the authorization 3 years after enactment by Congress, regardless of when the mission is completed
President Obama has repeatedly expressed his intent in repealing the 2001 AUMF, even after the new proposal to Congress was submitted, however many Republicans seem more preoccupied with the notion that the new proposal is too limiting in practice. Rampant skepticism by many players in the debate may indeed lead to a failure in passing any kind of authorization on Capitol Hill, thus keeping the current status quo. President Obama has argued that this new proposal “strikes the necessary balance by giving us the flexibility we need for unforeseen circumstances.” The divide is also triggered by those who see an urgency in confronting ISIS now but do not necessarily see much urgency in passing a new AUMF and vice versa.
Whether the new proposal is approved and the old AUMF orders are repealed lend much force to the bigger dilemma in the congressional power over military decisions. Normalization of past unilateral war practices by the President leads us down a slippery slope to nowhere. Miscommunication between the White House and the House and what goes on behind the scenes will be relieved in due time. However, on the surface, President Obama’s initial refusal seven months ago to seek authorization against ISIS, coupled with the failure of Congress to step up and restrict authorization, tied in with the administration’s current stance that absent any new AUMF it has the authority to unilaterally continue is the icing on the cake.
So what can be done to address abuses of alleged executive power? How can Congress be convinced to repeal an AUMF with no expiration date? Since the passage of the 2001 AUMF, it has been carried out in the following manner:
Mr. Bush used the authorization law as an excuse to kidnap hundreds of people — guilty and blameless people alike — and throw them into secret prisons where many were tortured. He used it as a pretext to open the Guantánamo Bay camp and to eavesdrop on Americans without bothering to obtain a warrant. He claimed it as justification for the invasion of Iraq, twisting intelligence to fabricate a connection between Saddam Hussein and the 9/11 attacks.
Unlike Mr. Bush, Mr. Obama does not go as far as to claim that the Constitution gives him the inherent power to do all those things. But he has relied on the 2001 authorization to use drones to kill terrorists far from the Afghan battlefield, and to claim an unconstitutional power to kill American citizens in other countries based only on suspicion that they are or might become terrorist threats, without judicial review. – New York Times
In the end, the administration’s refusal to repudiate that it already had the authority to wage war against ISIS based on the 2001 AUMF will understandably continue to cloud skeptics towards the new proposal. The inaction to repeal the 2001 AUMF may also continue to erode congressional power while inhibiting any new authorizations from being passed into legislation. Hopefully, that the new proposal will lead discourse that will outline clearly the limits of presidential power to initiate war- however where the state of things stand now, that hope seems bleak.
To end, this might seem like a striking reversal of executive power: As then-Senator Obama put it in 2007, “[t]he President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”