Congressional Inaction and the 2001 AUMF

April 8th, 2015

Echoing a post from Jack Goldsmith, Ben Wittes argues that Congress’s inaction on opposing the President’s incursion against ISIS amounts to a de facto ratification of the President’s reading of the 2001 AUMF.

Today, I want to focus on another area where Congress is poised to do nothing: authorizing force against the Islamic State.

Specifically, I want to argue that this inaction has important consequences—though less in the fight against ISIS than in the relationship between the executive and legislative branches over war powers. In the context in which it is taking place, this inaction—in my opinion, anyway—constitutes a meaningful congressional acquiescence in the President’s bold and relatively attenuated claim of authority to confront ISIS under the 2001 AUMF.

Yet let’s review the inter-branch bidding so far. First, the President asserted that he didn’t need an additional congressional enactment because the 2001 AUMF already covered operations against the Islamic State. Then prominent key members of Congress moaned for months that he was operating without congressional involvement and argued that he should seek a separate authorization. In response, while continuing to maintain that he did not need one, the President sent up a draft authorization that would supplement—but not replace—the 2001 AUMF, thus effectively taunting Congress with the duplicative nature of its potential involvement in this space. In effect, President Obama told Congress to go through the motions of passing a resolution if it wished but to do so understanding that its actions wouldn’t matter.

This had the effect of relieving Congress entirely from responsibility—except perhaps moral responsibility—for authorizing force. Congress’s vote would only have operational importance if it somehow circumscribed the 2001 AUMF, in addition to passing a new one. So it’s not too surprising that, having been told that its action or inaction was symbolic only, Congress has not rushed to pass an AUMF.

But it’s worth pointing out that this inaction effectively embraces the President’s interpretation of the 2001 AUMF. Because almost nobody in Congress is arguing that current operations in Iraq and Syria are illegal. Indeed, the pressure is all in the other direction. People are complaining that Obama is not doing enough against the Islamic State, that we are showing weakness and lack of commitment, that our airstrikes alone are ineffective. Well, if you put those pieces together—(1) Congress is not complaining about the legality of what the President is doing, (2) Congress, in fact, seems to want the President to do more, and (3) Congress declines to pass a specific authorization to cover what he’s doing or to circumscribe the statute under which he claims to be operating—it follows that Congress must accept the claim of authority the President is making under current law.

I don’t think you have to be an enthusiast of executive power to read things this way. And this seems to me have potentially far-reaching implications for future interpretation of the AUMF.

This is a point I presaged in my article last summer Gridlock and Executive Power. Inaction, resulting in acquiescence, amounts to a ratification of the President’s flawed constitutional arguments.

Update: More from Jack Goldsmith on acquiescence and Bergdhal here and here.