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War powers proposal does little to restore original constitutional balance

It’s a mere baby step toward respecting the now-almost-non-existent constitutional provisions on how the United States is supposed decide to wage war.

President Barack Obama, flanked by Vice President Joe Biden and Secretary of State John Kerry, delivering a statement on legislation sent to Congress to authorize the use of military force against the Islamic State on Wednesday.
REUTERS/Jonathan Ernst

I’m glad President Obama has decided to seek a congressional vote authorizing the ongoing U.S. military activity against the Islamic State in Iraq and Syria. But it is less than a half-step, more of baby step, toward respecting the now-almost-non-existent constitutional provisions on how the United States is supposed decide whether and when to wage war.

One of the Article I, Section 8 powers granted to Congress by the U.S. Constitution is the “power to declare war.” One of the roles of the president is to “be 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.”

This reflected a now-quaint understanding that the United States would mostly be at peace with the world but would occasionally decide to go to war. That decision would be up to Congress but once the war was declared and the Army and Navy and the state militias were mobilized, the president/commander in chief would be in charge of leading the war effort until peace was restored.

For decades now, the United States has never been truly at peace. Congress hasn’t literally “declared war” since 1941. But the “authorization for the use of military force” (AUMF) seems close enough to a declaration of war as not to flout the Constitution. Both the response to the 9/11 attack of 2001 and the 2003 invasion of Iraq (authorized by Congress in 2002) were the subject of AUMFs.

Commander-in-chief powers

Since World War II at least (and really before that) presidents have asserted that their commander-in-chief powers include the right to use military (or covert) force anywhere they feel it is necessary or even just advantageous. Sometimes they seek congressional approval in advance, often not. And they generally do so only when they have calculated that the approval will be granted. There’s really no way to reconcile this arrangement with the original constitutional vision, but the U.S. Supreme Court has been unwilling to impose the original arrangement on any president.

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Obama has taught constitutional law and surely understands all this much better than I do. He also, as president, inherited two still-running AUMFs, one for Iraq and one against terrorism.

In announcing his proposal of an AUMF to authorize what the United States is already doing to “degrade and ultimately defeat” the Islamic State, he did not restore the original constitutional arrangement. But the proposal, which will soon be debated by congressional committees, contains several features that strike me as a healthy step in that direction.

For starters, in his announcement, he said: “I do not believe this nation’s interest are served by endless war or by remaining on a perpetual war footing.” Wow.

He specified that the authorization for which he is asking would replace the open-ended 2002 authorization to invade Iraq, so in a sense, it is a net reduction in the kind of military authority the Oval Office now possesses.

Rather than seeking a broad, open-ended grant of war power, Obama’s proposed AUMF “does not authorize the use of the United States Armed Forces in enduring offensive ground combat operations.”

He proposes that the new AUMF expire in three years. Traditionally, AUMFs have no expiration date and have often been used to justify actions many years later that were clearly not envisioned at the time of the original vote. (Think Gulf of Tonkin resolution.)

Mini debate

PBS’ “NewsHour” put the proposal up for a mini-debate between two senators, Republican Deb Fischer of Nebraska and Democrat Tim Kaine of Virginia, both members of the Senate Armed Services Committee that will be reviewing the proposed AUMF. Their reactions were polite, but their differences were not too subtle.

Fischer thought the proposed language, for example, the explicit rejection of “enduring offensive ground operations,” and the decision to build a three-year expiration date into the AUMF were unwise.

Kaine felt the opposite on those two points. He seemed worried that language like no “enduring offensive ground operations” was too slippery and wouldn’t really ban anything, since ground operations could be deemed either not “offensive” or not “enduring.”

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Fischer said the three-year expiration date would “limit the next president of the United States.”

Kaine felt the “sunset” provision was an excellent idea: “It doesn’t mean that operations finish. It just means that a president has to come back to Congress.”

In rolling out the AUMF, Obama had said explicitly that the three-year time limit was inserted so that the next president and the next Congress would have to “revisit the question at the beginning of the next president’s term.”

Kaine, sounding skeptical about some aspects of the proposal, said he nonetheless believes that some version of the authorization will pass because there is widespread support for action against ISIS. Fischer made no prediction, saying she would wait to see what happened and what came to light during the committee hearings.

To return to my statement at the top that this proposed resolution does little to restore the original constitutional balance, bear in mind that if the resolution goes nowhere, nothing will change unless the president decides, under his commander-in-chief powers, to do more, less or something different.

The full text of the proposed resolution is here.

The full Fischer/Kaine discussion is here.