The draft AUMF enhances, through congressional recognition, the President's claims of independent constitutional authority to use force in Syria. Here is why. The draft acknowledges in its last "Whereas" clause that the President "has authority under the Constitution to use force in order to defend the national security interests of the United States." This broad and unqualified congressional acknowledgment of independent presidential constitutional power takes on special significance when combined with other "Whereas" findings, especially Congress's recognition that (a) "Syria's acquisition of weapons of mass destruction threatens ... the national security interests of the United States; and (b) "Syria's use of weapons of mass destruction and its conduct and actions constitute a grave threat to ... the national security interests of the United States." (My emphases.)
I think these provisions together constitute congressional acknowledgement that the President has constitutional authority, independent of the AUMF, to use military force to defend against the acknowledged threat to U.S. national security interests posed by the Syrian acquisition and use of WMD .... Note that this very broad congressional acknowledgment of presidential power does not suggest any geographical limitation.
... [T]he Senate's draft "Whereas" clause is much broader than the analogous ones during the Bush era. The "Whereas" clause in the 2001 AUMF, which at the time was criticized for being quite broad, is more concrete and narrow than the Senate draft, for it recognizes only that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." (The 2002 Iraq AUMF has the same basic language as the 2001 AUMF).
The "Whereas" language in the draft AUMF gives significant support to the position that the President has some (uncertain) independent constitutional authority to use force in Syria, regardless of what Congress authorizes, and (perhaps) beyond what Congress authorizes. Since I believe that a unilateral presidential use of force in Syria would go beyond all past OLC precedents, the "Whereas" clause as currently drafted is especially important to the President's novel constitutional position.
A Congressional resolution conceding, without limit, that the president "has authority under the Constitution to use force in order to defend the national security interests of the United States," is not only constitutionally wrong, but institutionally weird. As Stephen Griffin has documented, no president would have made such a strong claim before World War II, and no president since Truman -- whatever their rhetoric -- has committed U.S. forces to a major deployment abroad without congressional authorization. This "whereas" clause is contrary to the Constitution's original meaning, contrary to the War Powers Resolution, subversive of Congress's proper role in war powers decision making, and wholly unnecessary to frame the operational provisions of an AUMF on Syria..
In an email exchange, Louis Fisher, who has studied separation of powers for four decades at the Congressional Research Service and is now scholar in residence at the Constitution Project, agreed:
The final Whereas clause in the Senate bill represents an extraordinary abdication of congressional authority and violates the basic principle of republican government. Lawmakers should never publicly (or privately) acknowledge that the president has some kind of open-ended authority under the Constitution to use force when he personally finds it necessary to defend the "national security interests of the United States."