Fifteen Eighty Four

On February 11, 2015, President Obama sent a draft Authorization to Use Military Force (AUMF) against ISIL to Congress. In the coming months, Congress will make minor adjustments in the wording and pass the resolution.

The two purposes of the AUMF are 1) to limit “enduring offensive ground combat operations” to three years and 2) to repeal the 2002 AUMF for Iraq.  The first is clearly a politically astute move to clam congressional and public fears of “endless offensive ground combat operations.” The second is a much needed tidying up of administrative details. The 2002 AUMF is long past its “shelf” date.

An AUMF is functionally equivalent to an official declaration of war, but it is not the same thing

Before discussing legal and constitutional problems, the benefits of the AUMF should be listed: The president will benefit greatly by neutralizing present and future congressional opposition. Once passed, Congress will be as implicated in the policy as is the president.  Hence, any congressional criticism will be greatly weakened.

The public will also benefit in knowing that our political leadership has “consulted” and come to “a common judgment” on what to do. Bipartisan agreement is always comforting.

The biggest beneficiaries will be the talking heads on TV. They will be able to argue for and against the AUMF endlessly.

Legally, the AUMF is in the spirit of the 1973 War Powers Resolution, but escapes from the letter. The spirit of the War Powers Resolution is all about “consultation” by the president and Congress to form “a common judgment.”

The letter of the War Powers Resolution, however, calls for this “consultation” to occur before military operations commence, or within sixty day of the commencement. Since Obama officially announced the beginning of operations against ISIL on September 5, 2014, the sixty-day War Powers deadline has been missed. In other words, the AUMF is all about closing the barn door after the horses have left.

Then again, September was just before the mid-term elections. Preoccupied with reelection, Congress was in no condition to pass such an important resolution. Hence, the delay is no doubt justified.

Constitutionally, the AUMF is not unconstitutional, but extra-constitutional. It is not unconstitutional because Congress is always free to “authorize” anything it likes. In September, President Obama decided to use military force against ISIL. Now, five months later, who can object to Congress “authorizing” Obama to do that which he is doing?

The AUMF is extra-constitutional because nowhere in the Constitution is Congress authorized to “authorize” the use of military force. Article I, sec 8 empowers Congress “to declare war,” but nowhere in the Constitution is Congress authorized to “authorize” the use of military force.

True, an AUMF is functionally equivalent to an official declaration of war, but it is not the same thing. Butter cookies made with margarine are functionally equivalent to butter cookies made with butter, but they are not the same thing, as Julia Child would insist.

Since an official congressional declaration of war is the indisputably constitutional way for the United States to commence a war, to see Congress once again ignoring the Constitution is disconcerting.

But, more than disconcerting, does the congressional preference for margarine over butter not suggest a powerful explanation for all the quagmires from Vietnam to Afghanistan? Might it not be the case that the failure to abide by the Constitution is a powerful, if partial, cause of all these quagmires? When is it ever wrong not to follow the Constitution strictly and exactly?