AUMF Reform Will Not Restore Proper Constitutional War Powers
There has been a lot of talk about repealing Authorizations for the Use of Military Force (AUMFs) currently in effect. This, we are told, would restore war powers to Congress where they constitutionally belong. But these plans invariably include new “up-to-date” AUMFs. The problem is that, as they’ve been used, these AUMFs themselves are an unconstitutional delegation of war powers to the executive branch.
In practice, AUMFs have acted as resolutions that “authorize” the president to unilaterally decide if and when the United States will take military action, something the Founders intentionally withheld from the executive branch.
There are currently four AUMFs on the books: a 1957 Middle East resolution signed by President Dwight Eisenhower, the 1991 Authorization for Use of Military Force against Iraq (1991 AUMF), the 2001 Authorization for Use of Military Force (2001 AUMF) passed after the 9/11 attacks, and the 2002 Authorization for Use of Military Force Against Iraq (2002 AUMF).
Recent administrations have not relied on the 1957 and 1991 AUMFs, although they technically could because they have never been repealed. However, the 2001 AUMF continues to serve as the primary statutory authority for the “war on terror.” Presidents Bush, Obama, Trump, and Biden have all used it to justify their independent and unilateral decisions to take military action in the Middle East, not just in Afghanistan, but also in countries such as Somalia, Syria, and Libya.
The Biden administration is OK with repealing the current AUMFs, but that seems to be little more than window dressing because it simultaneously wants sweeping new powers, according to analysis by Just Security.
“The Biden administration’s vision for reforming the 2001 AUMF is for Congress to pass a new sweeping and indefinite delegation of war power to the president for military counterterrorism operations.”
It wants explicit authority in an AUMF to use military force against al-Qa’ida, ISIS, and al Shabaab along with a mechanism through which the president can unilaterally name “associated forces” to target.
“Under Secretary [of State] Nuland also testified that any new AUMF should be ‘global’ and enable the executive branch to unilaterally apply the authority to new geographic areas.
In other words, the Biden administration wants Congress to provide a renewed authorization to wage war whenever and wherever it determines. This would aggressively expand the status quo in place for decades under previous administrations.
Constitutionally, Congress must “declare war” before the president can engage in any military action beyond the line of defense. Thomas Jefferson put it this way.
“Congress alone is constitutionally invested with the power of changing our condition from peace to war.”
Article I Sec. 8 delegates to the Congress the power to “declare war.” Article II Sec. 2 designates the president as “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”
These two roles are separate and distinct from one another. Only Congress can make the decision to engage in war. Once that decision is made, the president then is required to prosecute the war, within the limits Congress places on him, if any. He must continue to execute the war until Congress takes explicit action to end the war.
As James Madison put it in Helvidius No. I, “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.” [emphasis in original]
The designation of commander in chief does not delegate to the president any authority to take America into war, initiate any offensive military expeditions, or unilaterally end them.
Founding-era discussion on war powers makes it clear that the framers and ratifiers wanted the authority to take America into war placed in the legislative branch because it is a deliberative body and most closely represents the will of the people and the states. They did not want the authority to drag the U.S. into war placed at the discretion of one individual. Madison emphasized this point in a letter to Thomas Jefferson.
“The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.”
There was a great deal of thought put into the separation of the power to declare and wage war. Madison considered it the wisest part of the Constitution:
“In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”
Nevertheless, some self-described constitutionalists claim the blueprint for war powers is “outdated” because the process might be too slow for their liking. But this was intentional as well. During the ratification debates, James Wilson emphasized that the constitutional structure was calculated to guard against hurrying the United States into war.
“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war.”
AUMFs SUBVERT THE CONSTITUTION
As used today, an AUMF is not the same as a declaration of war. In fact, it flips the constitutional process on its head by placing decision-making power in the hands of the president. Yes –it is a declaration by Congress. But in practice, AUMFs give the president the final say-so. In effect, Congress tells the president, “You decide if we’re going to war and then do it if you want to.”
This violates the constitutional separation of powers. Congress is supposed to make that determination. Basically, Congress uses AUMFs to pass the buck on its Constitutional responsibility to determine whether or not the U.S. should engage in military operations.
As James Madison put it, “The executive has no right, in any case to decide the question, whether there is or is not cause for declaring war.”
No constitutional provision authorizes Congress to transfer its delegated powers to another party, including the president. In fact, doing so violates basic legal rules of construction. In contract law, when a principal (the people) delegates power to an agent (the federal government), the agent cannot transfer its delegated power to another party without specific direction within the contract. No such authorization exists in the Constitution. So, Congress can’t legally give the president a blank slate to make decisions about war at his own discretion. Congress must make that call and make it specifically before the initiation of military action.
Some people claim that AUMFs fulfill Congress’s responsibility and maintain the separation of powers. In practice, they do the exact opposite. They empower the president to act without any specific congressional approval beforehand and give him broad authority to decide when and if he wants to act. This is not the type of deliberation the founders envisioned.
It is clear from the drafting of the Constitution through the ratifying debates that the president was never intended to exercise the type of war-making power he does today. Madison provided a compelling overview in Political Observations when he wrote, “the powers proposed to be surrendered to the executive, were those which the constitution has most jealously appropriated to the legislature.”
“The separation of the power of declaring war, from that of conducting it, is wisely contrived, to exclude the danger of its being declared for the sake of its being conducted.”
AUMF reform in its current form is nothing more than a way to repackage the status quo and allow politicians to campaign on fake reforms.
Congress, the Pentagon, and the executive will do everything possible to continue doing what they’re currently doing – running unconstitutional wars across the globe.