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.”