Ben Wittes writes that the ISIS AUMF is now dead, and POTUS has won.
We see in this story why Obama was clever to play the AUMF debate the way he did, following the Syria AUMF debacle in 2013. Obama, recall, declared that he didn’t need a new AUMF, waited months to send up a draft, and then sent up a draft that contained authorities duplicative of those he already claimed. This wasn’t principled or good government, in any sense, but the result is that Obama has successfully turned congressional calcification and paralysis to his advantage.
The reason is that because of the way he postured the matter, nothing actually hinges for Obama on congressional passage of a new AUMF; the President, after all, claims the authority to do everything he wants to do against ISIL under current authorities. In fact, as I explained the other day, congressional failure to act arguably constitutes acquiescence to his broad claim of authority under the 2001 AUMF, since few of the members of Congress who are refusing to pass a new authorization are also claiming that the president lacks legal authority to take action. Many Republicans are actually complaining that he is not doing more than he is against ISIL.
Obama, in other words, put himself in a position in which congressional action would strengthen his hands and congressional inaction—always the likeliest outcome these days—would also strengthen his hand, or at least not weaken it.
It was a smart play on the part of White House lawyers. And lawmakers, true to form, are showing its tactical wisdom.
This is a point that Justice Scalia made in his Noel Canning dissent. In any long-term struggle between the President and Congress, the President will prevail due to the collective action problems of getting Congress to agree. These collective action problems are even stronger in our age of gridlock.