The New York Times ran an editorial yesterday calling on Congress to debate and approve a new authorization for the use of military force (AUMF) in the war on ISIS:
But as the American military is doing its job, Congress is refusing to do its duty. Nearly three years into the war against ISIS, lawmakers have ducked their constitutional responsibility for making war by not passing legislation authorizing the anti-ISIS fight. This is not merely a bureaucratic issue. While the president has the power to order troops into battle, the founders were adamant about ensuring that only Congress could commit the nation to protracted overseas military actions.
It is true that Congress has been ducking its responsibility in matters of war for years, but the bigger fault in this case lies with the former and current presidents that have been waging a war for two and a half years without authorization. It is their overreach that is more obnoxious than Congress’ pathetic acquiescence. Calling on Congress to endorse the war years after it started makes the legislative branch little more than a rubber stamp for a policy that has never been seriously debated in Washington. That would effectively pardon and reward two presidents for waging an illegal war.
No president has the authority to do what the Obama administration did and the Trump administration is now doing in Iraq, Syria, and Libya, and that is the real constitutional problem here. The danger isn’t the absence of Congress’ ritual approval of a foreign war long after it began, but the president’s essentially unchecked ability to initiate wars whenever and wherever he wants. Endorsing the war over thirty months after its start isn’t going to keep this or any future president from starting new illegal wars, and it will simply give legal cover to the current open-ended, unnecessary war that the U.S. is fighting in at least three countries.
A new resolution might theoretically set limits on the duration, scope, and conduct of the war, but that isn’t going to limit what the executive actually does. Obama claimed that the 2001 AUMF gave him authority to launch this war when it clearly didn’t, and Trump can and will claim authority to do things he isn’t authorized to do if a new resolution is passed. Unless there is some consequence when a president abuses existing authorizations, the limits written into these resolutions don’t matter and won’t have any effect. If that’s the case, going through the motions of debating and voting on a new resolution seems like an exercise in futility.