BY COREY P. GRAY — President Barack Obama recently made the case for U.S. military action in Syria in response to a chemical weapons attack. In his Rose Garden address, Obama presented the situation in Syria as a violation of human rights and a threat to national security.[1] Conflating the threat of chemical weapons proliferation with terrorism, Obama concluded that the U.S. military should strike Syrian regime targets. President Obama made assurances that there would be “no boots on the ground,” and that military action would be limited in duration and scope.[2] Although hinting it was not required, the President revealed that he would seek authorization for the use of force from Congress.[3]
The U.S. Constitution establishes the president as the commander-in-chief of the armed forces.[4] The Constitution grants Congress the authority to declare war and to fund the military.[5] Opponents of unilateral presidential authority to commit U.S. forces regard executive military powers as inherently defensive. Conversely, the authority to conduct offensive military operations resides with Congress through its power to declare war and fund military actions. The U.S. Supreme Court has generally held that the dividing line of authority for the use of military force between the executive and legislative branches is a nonjusticiable political question.[6][7]
Congress enacted the War Powers Act of 1973 (WPA) to establish firm guidelines for the president’s use of military force8, citing the Necessary and Proper Clause as its authority.[9] The WPA requires the president to submit a written proposal to Congress within 48 hours of committing forces into armed conflict.[10] The report must consist of the circumstances, authority, scope and duration of hostilities. The WPA further establishes that the president must conclude operations within sixty days.[11] The president may continue military action past the sixty-day mandate only if one of three exceptions prescribed by Congress is met: a declaration of war; express extension of the sixty-day period; or the authorization for the use of military force (AUMF). In light of the war powers given the by the Constitution and those outlined by Congress, the president may conduct limited military operations without Congressional approval. The political cost of such a decision is readily apparent; however, the social, military, and financial implications of AUMF may be even higher. AUMF is an enumerated exception of WPA, which authorizes the president to conduct military operations beyond sixty days.[12] By seeking AUMF, the president’s de facto request is for authorization to exceed the threshold of limited duration and scope.
Recent history suggests that military efforts in Syria will not be limited in duration or scope if AUMF is granted. Congress granted AUMF against terrorists following the attacks on September 11, 2001 (AUMF 2001).[13] The use of AUMF 2001 has spanned three presidential elections. In fact, it is presently being used as the authority for drone strikes on persons categorized as terrorists.[14] In 2002, Congress authorized AUMF against Iraq (AUMF 2002) to pursue weapons of mass destruction[15] and Al Qaeda affiliates.[16] AUMF 2002 led to a regime change in Iraq and a nation-building operation that concluded in the year 2011.[17] As Congress contemplates granting AUMF in 2013, it would be prudent to consider recent history. If the President’s military goals are intended to be limited in duration and scope, AUMF may be at odds with his stated intent.
Citation
1 Barak Obama, President of the United States of America, Address at the Rose Garden (Aug. 31, 2013), available at http://www.whitehouse.gov/the-press-office/2013/08/31/statement-president-syria.
2 Id.
3 Id.
4 U.S. CONST. art. II, § 2, cl. 1 (stating that “the President shall be Commander in Chief of the Army and Navy of the United States, and Militia of the several States”).
5 U.S. CONST. art. I, § 8, cl. 11-16 (stating that “Congress has the power to declare war and to raise and support Armies”).
6 Black’s Law Dictionary defines the political-question doctrine as a judicial principle that the court should refuse to decide an issue involving the exercise of discretionary power by the executive or legislative branch of government.
7 See Youngstown Sheet &Tube v. Sawyer, 343 U.S. 579,641-45 (Jackson, J. concurring) (stating that the court cannot determine the absolute scope and limitations of presidential war powers).
8 War Powers Resolution, 50 U.S.C. §§ 1541-1548 (1973).
9 U.S. CONST. art. II, § 8, cl. 18 (stating that “Congress has the power to make all laws that are necessary and proper for carrying into execution the powers vested by the Constitution”).
10 50 U.S.C. § 1542 (1973).
11 50 U.S.C. § 1544 (1973).
12 Id.
13 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
14 James J. Carafano, Say What You Want About Drones—They’re Perfectly Legal, THE ATLANTIC, Aug 26, 2013, available at http://www.theatlantic.com/international/archive/2013/08/say-what-you-want-about-drones-theyre-perfectly-legal/278740/; Lara Jakes, Congress Considers Putting Limits on Drone Strikes, ASSOC. PRESS, Feb. 6, 2013, available at http://www.military.com/daily-news/2013/02/06/congress-considers-putting-limits-on-drone-strikes.html.
15 National Security Strategy to Combat Weapons of Mass Destruction, Chairman of the Joint Chiefs of Staff, Feb 13, 2006, available at http://www.defense.gov/pdf/NMS-CWMD2006.pdf.
16 Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498 (2002).
17 Promise Kept, White House, http://www.whitehouse.gov/iraq/ (last visited Sept. 7, 2013).
