President Obama says he would “welcome congressional support” but does not need authorization from Congress in order to use force against the Islamic State. The President appears to have taken no steps to propose actual language to Congress or to move the idea of an authorization along. And Congress appears to have done nothing significant as a body concerning an authorization of force. Late last month Speaker John Boehner said that Congress would vote on an authorization as soon as the President asked for one. “The president typically in a situation like this would call for an authorization vote and go sell that to the American people and send a resolution to [Capitol] Hill,” Boehner told ABC. “The president has not done that. He believes he has authority under existing resolutions to do what he’s done.”
Many people think Boehner is ducking for cover, and maintain that Congress should act on its own initiative, even without a presidential request, to authorize force against the Islamic State. “Since when do we sit around waiting, using the excuse ‘He didn’t ask’?” asked House Minority Leader Nancy Pelosi last week. “No, if you want to have an authorization that has any constraints on the president, you don’t wait for him to write it.” Former Representative Tom Campbell claims that Congress’s inaction amounted to “running way from its responsibility.”
The truth is that neither the President nor the leadership in Congress wants a vote right now. But the very notion that Congress is going to authorize force in the absence of a concrete presidential proposal and a significant presidential push to see it enacted is fanciful. Congress is naturally responsibility-dodging. And on top of that, its de-centralized structure makes it very hard for it to get its act together, on its own initiative, to authorize force. I suspect that this has been generally true for all of American history. But I have looked only at the post-World War II period.
Since World War II, six of the eight congressional authorizations to use force resulted from a formal request by the President to Congress, including essential terms and usually a draft proposal, all followed by executive branch engagement with Congress to see it through. (The cases are: Formosa (1955), Taiwan (1957), Vietnam (1964), Iraq (1992), post-9/11 (2001), and Iraq (2002).) Presidents affirmatively sought congressional support in these cases regardless of whether the President’s party controlled one or both houses of Congress, or neither. Presidents did not get all of what they wanted in these cases, but they got most of what they wanted. There are two exceptions where Congress initiated the authorization—in Lebanon (1983) and Somalia (1993). But these are not happy precedents for the presidency, for they are instances in which presidential unilateralism went badly, and Congress in response took the initiative to insist on the applicability of the War Powers Resolution and to authorize force with President-constraining conditions.
In modern times, in sum, AUMFs have materialized in two situations: (1) Presidents affirmatively seek and make the case for congressional support, they propose terms, and they push hard for enactment on the president’s terms; or (2) Presidents act unilaterally, something goes wrong, the conflict becomes unpopular, and Congress pushes back with a conditional authorization and an insistence on the applicability of the WPR.
If history is any guide, therefore, President Obama won’t get an AUMF from Congress unless he formally asks Congress to act, proposes terms, and pushes for enactment; or unless the fight against Islamic State goes so badly that Congress intervenes in reaction. The White House is well aware of the first point, and is very much hoping that the second does not come to pass. Perhaps the White House is (as some have suggested) waiting until after the mid-term elections to ask for an AUMF. If that is so, it should at that time propose a draft resolution, or commit to and push one of the proposals offered by individual members of Congress (such as Representative’s Schiff’s). But the White House cannot seriously believe that an authorization for the use of force against the Islamic State will emerge from Congress without a strong presidential initiative of the type we have not yet seen.
A few more words about the possibility of an authorization after the mid-terms. All but one of the force authorizations since World War II were sought by the President before he used any force, and the exception (Vietnam) involved use of unilateral force and a request for authorization that were close in time. Modern history thus provides less clear guidance about what Congress will do months after the President commits to significant force without advance authorization from Congress. (And the situation here is even more complex, because the President claims to rely in part on the 2001 and 2002 AUMFs.) We have seen the two examples—Lebanon and Somalia—where the missions did not go well and Congress intervened with ex post conditional authorizations. There are two other examples—Libya (2011) and Kosovo (1999)—where the President used significant force abroad without ever seeking or receiving ex post authorization from Congress. And finally there are many examples of smaller-scale uses of force that never resulted in ex post congressional authorization. So if the President does seek congressional authorization in December or January, many months after he began using significant force on his own authority (or old AUMFs), the request will come in a largely unprecedented posture.
Here are sketches of the eight historical episodes since World War II that led to an AUMF (followed by a note on sources):
1955 Authorization to Use Force to Protect Formosa. On January 24, 1955, President Eisenhower gave a speech seeking authorization to use force, if necessary, in the Formosa Straits. He noted that he had the authority to use force on his own, but sought congressional authorization to “make clear the unified and serious intentions of our Government, our Congress and our people.” He then outlined what the Authorization should contain in general. And a few days later he sent a draft authorization to Congress, which it later enacted. At the time, Democrats controlled both houses of Congress, and Eisenhower was, of course, a Republican.
1957 Authorization to Use Force in the Middle East. On January 5, 1957, Ike again asked Congress for authorization to use force, this time to prevent Communist aggression in the Middle East. He once again gave a speech making the case for the authorization, and in his speech he once again outlined the essential features of the authorization. The following day, the President sent a draft proposed authorization to Congress. The proposal faced resistance in Congress but, after a big push by the Eisenhower administration, Congress amended and then enacted Eisenhower’s proposal. At this time, Democrats still controlled both houses of Congress.
1964 Gulf of Tonkin Resolution. On August 4, 1964, President Johnson spoke to the nation about an attack on U.S. naval vessels in the Gulf of Tonkin, and his unilateral response. The following day, Johnson sent a message to Congress explaining the need for an authorization of force and outlining what it should include. He also sent Congress a formal draft resolution (which his State Department had apparently been working on all summer). Following testimony about the authorization, congressional debate, and some amendments to Johnson’s proposal, Congress voted on August 10, 1964 to “approve[] and support[] the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the Untied States and to prevent further aggression.” The Democrats controlled both the White House and Congress.
1983 Authorization to Use Force in Lebanon. Beginning in July 1982, President Reagan sent U.S. marines to Lebanon as part of a multinational peacekeeping force; the numbers of U.S. troops deployed grew to over one thousand by September 1983. Although U.S. forces suffered casualties during this period (even before the famous October 1983 truck bombings), President Reagan maintained that these deployments did not trigger the clock under Section 4(a)(1) of the War Powers Resolution. In response, several members of Congress offered bills to force the President to invoke Section 4(a)(1) or to cease funding the military action in Lebanon. The President tried to push back on these initiatives and after much acrimony he and Congress compromised on what became the Multinational Force in Lebanon Resolution. This law specified that the WPR governed the troop deployment, and it authorized the continued deployment of troops in Lebanon with restrictions, including an 18-month time limit. At the time, Republicans controlled the White House and Senate, and Democrats controlled the House.
1991 Authorization to Use Force in Iraq. Beginning in August 1990, President George H.W. Bush sent 350,000 troops to the Middle East to respond to Iraq’s invasion of Kuwait. After securing an authorization of force from the United Nations Security Council in Resolution 678, Bush maintained that Article II gave him all of the domestic authority he needed to use force against Iraq. In November and December, President Bush—like President Obama in 2014—indicated in several ways that he would welcome support for his unilateral action, but insisted that he was under no constitutional obligation to seek such support. Nonetheless, under enormous political pressure, Bush on January 8, 1991 sent a letter to Congress that requested it to “adopt a Resolution stating that Congress supports the use of all necessary means to implement UN Security Council Resolution 678.” A few days later Congress gave the President what he asked for, but it changed his request for “support” for his use of force to an “authorization” to use force. Bush was a Republican, and Democrats controlled both Houses of Congress.
1993 Somalia Authorization of Force. This case is similar to Lebanon. In December 1992, President George H.W. Bush sent troops to Somalia on a humanitarian mission pursuant to a U.N. Security Council Resolution. He reported the action to Congress but did not invoked Section 4(a)(1) of the WPR. Early in President Clinton’s term, Congress fitfully tried but failed to authorize this action, with limits. U.S. forces suffered sporadic casualties over the summer, and then came the ill-fated Battle of Mogadishu (the Black Hawk Down incident) on October 3 and 4, 1993. A few days later, President Clinton announced that he would withdraw most U.S. Forces by March 31, 1994. To ensure that this happened, Congress cut off funds after March 31, 1994, and affirmatively authorized force for limited purposes during the intervening period. The Democrats at this time controlled both branches of government.
2001 Authorization to Use Force Against 9/11 Perpetrators. After 9/11, President Bush sent to Congress a very broadly worded draft AUMF and pushed hard for its passage. Congress considered the draft, narrowed it in some respects, and passed it a few days later. The Republicans controlled the White House and the House of Representatives, and the Democrats controlled the Senate.
2002 Authorization to Use Force in Iraq. On September 19, 2002, the White House sent a draft joint resolution for Congress to authorize force against the threat posed by Iraq. The House introduced a revised version (with the assent of the White House) on October 7, and both Houses later passed the House resolution, which President Bush signed on October 16. Republicans controlled the White House and House, and the Democrats controlled the Senate.
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Sources below (not including presidential documents and newspaper accounts). Please let me know if I got any facts wrong.
Elsea & Grimmett, Declarations of War (DOW) and Authorizations for the Use of Military Force: Historical Background and Legal Implications.
Kelley (ed.), Divided Power: The Presidency, Congress, and the Formation of American Foreign Policy.
This essay was cross-posted at Lawfare.