The Case for a Rewritten Authorization to Use Military Force

The 2001 Authorization to Use Military Force[1] is the ongoing legal basis for U.S. military activities in the Middle East. Passed by Congress in the days following the September 11th attacks, the AUMF states:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Though written nearly 20 years ago, this phrase still empowers the president to deploy forces in the Middle East, effectively nullifying the constitutional war powers designated to Congress by the Constitution. After explaining why the AUMF is unconstitutional by design, I will assert that Congress needs to approve acts of war on a case-by-case basis in the interest of national security and institutional legitimacy. The necessity for case-by-case approval by Congress was illuminated in particular by the unconstitutional killing of Iranian General Qassem Soleimani.

First of all, the 2001 AUMF is structurally unconstitutional because it provides continuous consent, from Congress to the Executive, to use acts of war arbitrarily. The Constitution states in Article 1, Section 8 that only Congress has the authority to declare war and to “raise and support armies.” While the president is the Commander in Chief of the armed forces (Article 3, Section 2), he cannot execute acts of war without first obtaining the approval of Congress. When the Framers drafted these clauses, it can reasonably be assumed that they intended for each potential war-like action to be jointly approved between the Executive and Congress. In a newspaper article addressed to President Washington, James Madison affirmatively declared, "The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature...the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war."[2] Clearly, the Framers intended for decisions on military action to be jointly made - discretely and with respect to the temporal, cultural, and political forces at the time of the decision. Yet, contrary to the Framers’ intentions, the Bush, Obama, and Trump administrations have been using the 2001 AUMF as continuous support for military intervention in the Middle East. In essence, each time their administrations wanted to pursue military action against a target in the Middle East, Congress pre-consented to the President’s actions through the AUMF. This continual and temporally unrestrained consent that the AUMF authorizes makes it an unconstitutional statute. 

Congress cannot statutorily and continuously abdicate war powers for two reasons. One, the War Powers Resolution Act[3] necessitates that the President “report to the Congress periodically” when U.S. Armed Forces are deployed into a hostile situation. Although the War Powers Resolution Act was intended to check the power of the Executive in the context of military action, the responsibility goes both ways. The War Powers Resolution requires Congress to routinely re-authorize and oversee the President’s use of military force, making statutory abdication unlawful. The second reason that Congress cannot continuously abdicate war powers by statute is because Congress is required to check and balance the power of the Executive, both in war powers and in legislation.[4] The 2001 AUMF effectively throws checks and balances aside, giving excessive power to the President. By direction of the Constitution and intention of the Framers, Congress cannot shed its war powers responsibility. To that end, Congress should not be able to delegate any of its responsibilities to external governing bodies, as such actions undermine its constitutional legitimacy at large. To give away war powers, in particular, is to fail the American people. Unfortunately, the AUMF effectively nullifies the war powers of Congress, leaving Congress with reduced authority on matters of national security.

Lawrence Friedman and Victor Hansen of New England Law Boston made this assertion when they said, “the strongest and most urgent reason to support the effort by Sens. Flake and Kaine [to rewrite the 2001 AUMF] is to preserve Congress’s institutional legitimacy when it comes to national security.”[5] The decision to risk American lives in combat is too great a responsibility for the President to bear without taking Congress into account. For the same reason that the White House federal budget is checked by Congress before the official federal budget is signed into legislation, the Framers gave Congress the power to declare war so that the interests of everyday Americans would not be lost in high level decisions. By continuously and pre-emptively consenting to military action by the President, Congress is shirking its constitutional responsibility, weakening its national influence, and undermining its institutional strength. Here the problem stems from the unconstitutional design of the 2001 AUMF.

The need for a rewritten Authorization to Use Military Force is apparent for constitutional reasons and also because of real-life incidents. On January 3, 2020, President Trump authorized the killing of Iranian General Qassem Soleimani[6] to the simultaneous surprise of Congress and the American people. The instigation for the strike was unclear, and members of Congress were totally blindsided by the President’s actions. By any reasonable terms, a precision airstrike killing a top ranking foreign general constitutes an act of war, yet members of Congress learned of the strike at the same moment as did the American people. Irrespective of whether the strike was justified in the name of national security or not, incidents like this defy the constitutional authority of the Executive and make a mockery of Congress' war powers. This incident and others like it, such as the continuing deployment of forces in Syria without reauthorization by Congress[7], have routinely been justified by the 2001 AUMF. 

Decisions made by the President without consulting Congress also set a dangerous precedent. In the information age with nuclear weapons ready for deployment, it is particularly dangerous for any President to execute an act of war without first consulting Congress. Therefore, Congress must rewrite the 2001 AUMF in order to reclaim its constitutional war powers. Doing so will democratically check the power of the President, restore a proper precedent on matters of national security, and maintain Congress’s institutional legitimacy.

[1] Public Law 107–40 — 107th Congress: Authorization For Use of United States Armed Forces.

[2] James Madison, “Helvidius, Number 4,” Gazette of the United States, September 14, 1793.

[3] H.R. 4858 — 93rd Congress: War Powers Act.

[4] U.S. Const. art. I,§8, cl.11. & U.S. Const. art. I,§1.

[5] Victor Hansen and Lawrence Friedman, “Congress Needs to Take a Look at Constitutional Use of Military Force,” The Hill, January 11, 2018, https://thehill.com/opinion/judiciary/368386-congress-needs-to-look-at-the-reality-of-using-military-force.

[6] President Donald J. Trump, “Remarks by President Trump on the Killing of Qasem Soleimani,” Accessed April 15, 2020, https://www.whitehouse.gov/briefings-statements/remarks-president-trump-killing-qasem-soleimani/.

[7] Charlie Savage, “U.S. Says Troops Can Stay in Syria Without New Authorization.” The New York Times, February 24, 2018, https://www.nytimes.com/2018/02/22/us/politics/isis-syria-american-troops.html.