11 Sep Obama’s Lame Justification for the ISIL Strikes (He Played the Wrong Card)
I’ll pile on in deploring the legal justification for the expanded operation against the Islamic State. No one is buying the AUMF basis. In addition to Jens below, Jack Goldsmith and Jennifer Daskal have devastating critiques here and here.
The justification could have lasting negative consequences for interbranch relations in the war powers context. The 2001 AUMF involved a context in which congressional authorization was necessary, the response to the 9/11 attacks comprising real “war” for constitutional purposes. It has now been deformed beyond all recognition. This will deter future Congresses from authorizing the use of force even where such congressional authorization is necessary.
It’s a little like Tonkin Gulf. That resolution gave the President what he needed to respond to an (alleged) attack by North Vietnamese forces. But the ensuing conflict was beyond anything that Congress could have imagined at the time, and it felt burned for a generation thereafter for having written what turned out to be a blank check. Depending on how the ISIL operation goes, Obama’s justification could result a similar kind of institutional resentment and distrust, which will make cooperation even more difficult than it already is.
Part of the disappointment here is that he had a much better card to play: longstanding historical practice. (This typically comes under an Article II/Commander in Chief label, though I don’t think you need the constitutional text to get there). The ISIL operation would have comfortably fit into the tradition of Presidents undertaking limited uses of force without congressional authorization. There would have been continuity to that argument — many would have disagreed, but I think the critique would have subsided in due course, because it would have enjoyed a strong basis in the practice. I don’t know if the critique of the AUMF justification is going to subside so quickly. The early returns are not promising.