The President’s Reliance on the 2001 AUMF Allows Him To Avoid Article II

September 12th, 2014

There is a lot to consider in Marty Lederman’s thorough post on the President’s reliance on the 2001 AUMF to attack ISIS. But I’ll focus on one aspect that feeds into my work on Obama’s theory of executive power.

The Administration’s interpretation of the 2001 AUMF, by contrast–whatever its substantive merits–avoids the need even to opine on the scope of the WPR and Article II, let alone to blow large holes in them.  The only law that it affects is the interpretation of a single force authorization statute.  And it keeps the ultimate decision-making authority in Congress’s hands.  If Congress disagrees with that understanding of the 2001 AUMF, it could easily say so in the course of enacting a new, more tailored authorization statute for use of force against ISIL.

This is keeping with the President’s consistent desire to avoid basing any decision on inherent Article II powers–I would argue based on the cognitive dissonance of that being arguments he once rejected from the Bush Administration. Instead, he turns to a strained interpretation of a statute.

Bruce Ackerman sums it up nicely:

Mr. Obama may rightly be frustrated by gridlock in Washington, but his assault on the rule of law is a devastating setback for our constitutional order. His refusal even to ask the Justice Department to provide a formal legal pretext for the war on ISIS is astonishing.

Update: Shalev Roisman at Just Security has a reply to Ackerman’s Op-Ed that makes my point about statutory avoidance very clearly:

In short, while Professor Ackerman claims President Obama is stretching the Constitution, it seems the real argument is that he is illegitimately stretching Congressional statutory authority.   While arguably semantic, this seems like an important distinction.  The early Bush administration was criticized for arguments that sought to justify powers based on allegedly inherent constitutional authority.  What so concerned many scholars and activists was the implication that the President had seemingly boundless inherent war powers that could not be constrained by Congress.  President Obama’s arguments, on the other hand, rely on statutory interpretations, that—while admittedly sometimes counterintuitive—at least implicitly, give Congress the opportunity to change the statute and constrain the President’s power.   Perhaps a better title for Professor Ackerman’s Op-ed, would be “Obama’s Betrayal of Congressional Will.”   It’s less catchy, but perhaps more accurate.