As the media is reporting today, and the White House has confirmed, the President has authorized ground troops – apparently, under 50 Special Operations forces – to fight the Islamic State (ISIL, or ISIS) in Syria. This is welcome news to those who believe the President has been, well, less than fully serious about the ISIL threat. Whether this particular action will have much effect on ISIL is a good question. But the President’s decision also brings with it a serious constitutional question. Can the President unilaterally authorize these forces to fight this particular battle without a specific legal authorization to do so from Congress?
The President, in February of this year, drafted and recommended to Congress an authorization for the use of force specific to ISIL, though not geographically limited. Congress never acted. Perhaps that is because Congress did not believe it was necessary; or perhaps it was because Congress did not have an interest in taking a position on the particular authorization, thinking that voting for such a measure could be a political liability if the situation in Syria went bad; or perhaps it was because Congress is lazy. Whatever the explanation (I prefer to think the second one is most plausible), Congress has not voted on, nor even properly debated, a specific authorization for the conflict with ISIL. So can the President send ground troops unilaterally? If so, why is he just now doing so? And if he cannot, then is there a constitutional reason why he could engage in airstrikes without specific congressional authorization (as we have been doing for some time)?
The Constitution makes the President the Commander-in-Chief. But it also says that Congress shall have the power to “declare war.” In 1973, Congress, in response to executive excesses with respect to the Vietnam War, passed (and enacted, over President Nixon’s veto) the War Powers Act, which restricts the legal authority of presidents to introduce and maintain military force, though presidents (like Nixon) have consistently believed that some or all of the War Powers Act is unconstitutional. Loads of ink have been spilled debating whether Congress must authorize all uses of military force, or whether the President can do so unilaterally (Congress has not formally declared “war” since the mid-20th century). I will not rehash that constitutional debate here, though it is a vital one. Suffice it to say, that debate has never been resolved, and today’s announcement from the White House only invigorates it. There is, of course, the threshold question of whether the President is engaged in “war” at all, as that term is understood in Article I of the Constitution (i.e., are airstrikes “war”? Are ground troops “war” if their primary mission is training and assisting local forces?).
One thing, however, struck me as odd, though perhaps I am misunderstanding the point. At today’s daily press briefing, White House Press Secretary Josh Earnest said that it is beyond debate that the 2001 Authorization for the Use of Military Force (AUMF) that Congress passed after September 11 covers the President’s actions in Syria. Earnest, however, then explained that the President would “welcome” a more specific AUMF, and referred to the fact that the President had submitted a proposed new AUMF in February. But if it is clear to everyone that the 2001 AUMF covers today’s action in Syria, why would the President even need a new AUMF? Why even propose one? And if the purpose of a new AUMF is simply to clarify the scope of the President’s authority by being more specific, does that not undermine Earnest’s claim that the 2001 AUMF indisputably authorizes ground forces in Syria? Earnest’s statement today appears to be inconsistent with the President’s letter to Congress in February, stating that he wants to repeal the 2001 AUMF and that he needs an AUMF specific to the ISIL threat. Indeed, I read the February request as an implied concession that the President lacked congressional authorization in the absence of a new AUMF.
Obviously, by taking this action today, the President is saying that he believes that he has unilateral authority. But I would want to know more about why he believes that: is it because the AUMF from 2001 is adequate authority, or is it because Article II of the Constitution is adequate authority, or is it because of both? And if Article II is adequate, why worry about an AUMF at all, as a legal matter?
Although I have written in the past, and agree with others, that there are circumstances in which the President can use military force without congressional authorization, I also think that Congress should authorize force whenever possible. That requires actually having a full and frank debate on the question and taking a position, regardless of the political risks. Such a debate is especially important when one imagines that kind of threat that ISIL poses to the region and to our security interests at home and abroad. Congress cannot avoid the issue for months, or even years, and then complain later that the President exceeded his authority because Congress did not authorize the action. It is remarkable, and troubling, that to this day, the Congress has not yet authorized – nor even fully debated the parameters of – the American fight against ISIL.