With Christmas lights reflected in the window, President Obama makes an address to the nation in the Oval Office of the White House on Sunday. AP Photo/Jacquelyn Martin

This article is from the archive of our partner National Journal

After fighting the Islamic State for more than a year, President Obama has renewed his call for Congress to give him the specific authority to fight the terrorist group. But the odds that he’ll get it aren’t high.

He laid down the gauntlet in front of the American people in a rare Oval Office address Sunday night:

“If Congress believes, as I do, that we are at war with ISIL, it should go ahead and vote to authorize the continued use of military force against these terrorists,” he said. “For over a year, I have ordered our military to take thousands of airstrikes against ISIL targets. It's time for Congress to vote to demonstrate that the American people are united, and committed, to this fight.”

The president typically needs congressional authority to lead a military campaign against an enemy—hence the call for an authorization for use of military force to fight the Islamic State, which comes 10 months after the White House submitted a draft version to Congress. The effort has been stalled ever since, held up by concerns from both Democrats and Republicans. The White House maintains that they already have the authority to fight the group, from the 2001 AUMF granted to fight the perpetrators of the 9/11 attacks. So why do they need another one?

First, the legality of using a 14-year-old authorization is questionable. Though the White House says its actions are in keeping with the Constitution, Obama’s declaration of war “marks a decisive break in the American constitutional tradition,” wrote prominent liberal legal scholar Bruce Ackerman last year. Some other critics concur that the war on the Islamic State is illegal.

In his address, Obama seemed to present the AUMF as necessary symbolically, to show the unity of the executive and legislative branches, as well as the American public. But a White House official rejected that interpretation: “We wouldn’t characterize it as symbolic.”

But more than a year after he ordered U.S. military to take thousands of airstrikes against Islamic State targets, as he noted in his Sunday address, the urgency of whether the war is legal has faded. The issue now, 15 months in, is whether it sets a dangerous precedent for war without authorization.

“What we’re basically doing is setting the stage for future presidents to do a similar thing,” says Rep. Jim McGovern, who led a bipartisan group of 35 lawmakers in urging House Speaker Paul Ryan to move forward with the effort last month, “to be able to basically get us involved militarily in conflicts halfway around the world and not have to come to Congress to consult.”

Ken Gude, a national security fellow at the Center for American Progress, a liberal think tank, notes that 14 years after it was passed, the 2001 AUMF is the longest war authorization that has ever been in continual use.

“It’s not a good governance situation to rely on a congressional authorization that is so old, and was directed at an enemy that was not specifically ISIL,” he says. The renewed push for an AUMF, Gude says, constitutes an administration reproach: “‘Let’s get with the program here, guys. This is not how our government should function.’”

Put another way: Obama wants the new authority “for political cover.”

On Capitol Hill, lawmakers still find themselves deeply divided over not just the specifics of an AUMF, but whether one should be passed at all.

Many Democrats pushed for a new AUMF to combat the Islamic State beginning late last year, but were disappointed with the breadth of the White House’s proposal for a new authorization, citing concerns that without serious limitations, they could be voting in favor of another open-ended conflict similar to those in Iraq and Afghanistan, many of which still haunt Democrats’ voting records.

Sen. Tim Kaine, a member of the Foreign Relations Committee and major advocate for a new AUMF, said Monday evening that he was thrilled to hear Obama’s call for Congress to “get off the sidelines” and pass an AUMF, adding that he hopes “Congress will decide to engage.”

But prospects for an AUMF, particularly in the near-term, are slim. Senate Majority Leader Mitch McConnell suggested just last month that his conference was not open to passing a new authorization, arguing: “It's clear the president does not have a strategy in place, so it would be hard to figure out how to authorize a non-strategy.”

Just a week later, Ryan said that Obama has “the authority right now under the existing AUMF” to combat the Islamic State and said that Congress would “revisit” the issue at a later time.

Congress appeared set to move forward with a new AUMF against the Islamic State after the White House sent a draft authorization to Capitol Hill in February, but those talks fell apart amid concerns on both sides.

Former Senate Foreign Relations Chairman Robert Menendez nicely summarized the problem Monday night: “The big debate here is between a universe, mostly Republicans, that wants to basically say, 'Here you go [Obama], you have the wherewithal to do anything you need'—you know, an open-ended authorization—and Democrats who don’t want to see another Iraq or another Afghanistan in terms of an open-ended military [engagement]; they want to tailor it more. When you get to tailoring it more, you have a Republican universe that says, 'No, we ... think that by tailoring it, you’re controlling an executive and you’re hamstringing him.'”

The debate, Menendez said, has allowed Republicans to move on from the issue arguing that “there’s no agreement and the administration is already having military actions without it.” The New Jersey Democrat, as many of his colleagues have in the past, called on Republicans to present their own AUMF strategy, but that doesn’t appear to be going anywhere either.

Sens. Lindsey Graham and John McCain have both signed onto new legislation that extends the current AUMF to fight the Islamic State, but that appears to be too open-ended for many Democrats, who have asked for a moratorium on ground troops and, in some cases, for geographical borders to be established for the fight. Asked whether he saw any prospects for moving forward on that bill this year, McCain said “not particularly.”

Senate Majority Whip John Cornyn said that despite Obama’s call for a new AUMF on Sunday night, he sees no shift in Congress’ outlook on the issue. “Our Democratic friends want to use an AUMF to tie the hands of the next president and that doesn’t strike me as a good idea.”

Asked what Republicans need from Democrats and the White House to move forward with an AUMF, Cornyn said: “Well, not to tie the hands of the president. But it’d be good to have a plan.”

As a party, Senate Republicans will not present an AUMF of their own, Cornyn said, at least “not without a strategy.”

This article is from the archive of our partner National Journal.

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