The Coming Congressional “Authorization” to Use Force Against ISIL?

Many commentators and news outlets are focused on whether the White House will seek, or Congress will pass, authorization for the President to use military force against ISIL. A story in Politico repeats what is fast becoming the conventional wisdom–that Congress will do nothing in the coming weeks on the authorization of force:

“Top House Republican and Senate Democratic leadership have next to no interest in passing any sort of legislation to deal with the Islamic State of Iraq and the Levant (ISIL) threat in Iraq and Syria, according to aides.”

“[N]ext to no interest in passing any sort of legislation to deal with” ISIL? That’s not exactly correct.

Watch the President’s speech closely tomorrow night for the following.

In the coming days, the White House will seek significant new funding for the ISIL operations. (The President also conspicuously mentioned his intention to seek new funding in his interview with Chuck Todd on Meet the Press, alongside their discussion of his authority to use force.) Congress will very likely grant the appropriations.

We’ve seen this movie before.

The following scene is that many will contend the funding for ISIL operations satisfies the requirement of congressional authorization for use of force. That’s precisely what the Clinton administration claimed when it conducted military operations in Kosovo without an AUMF from Congress. And the roots of this legal debate lie in Vietnam.

The War Powers Resolution (WPR) states that congressional authority to introduce US armed forces into hostilities “shall not be inferred” from legislative appropriations for military operations. But the devil may be in the details of the conditions under which Congress legislates and the wording of the final text.

For both the WPR and the Article II constitutional questions, the important point is to keep one’s eye on the ball. The key may be appropriations legislation, not an explicit AUMF, for now. 

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About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.