The Washington Post Editorial Board’s (mis)conception of Congress’s role in war authorizations

In Monday’s Washington Post, the editorial board called for the next Congress to prioritize passage of an authorization for use of military force (AUMF) against ISIL, but also admonished Congress not to place conditions on its authorization. The editorial states:

“Congress’s role is to authorize wars and their aims, not micromanage how they are waged.”

In other words, the proper role for members of Congress is to authorize the war, specify its objectives, and then get out of the way.

The Post’s main target on this occasion is a proposed congressional limitation on ground combat forces. It’s not, however, the first occasion for the  Post to put forth this narrow view of the “role” of Congress. Last month, the Editorial Board implied that  even a sunset clause would be an unacceptable form of “micromanagement.” That editorial stated (my emphasis):

“Some will want to include provisions ruling out the use of U.S. ground troops in Syria or Iraq, spelling out goals for new Iraqi or Syrian governments or setting a time limit on the campaign. …  In our view the most workable approach would be to keep the measure simple, allowing broad authority for the new military operations without congressional micromanagement.”

It is unclear how the Post derives its understanding of the proper role of Congress—but if its assessment is based on a sense of historical practices, that view is deeply misguided.

Consider the history of AUMFs. According to a recent study by the National Security Network, “Of the 35 instances that Congress has authorized the use of military force, 60 percent contained geographic limitations, 43 percent named the enemy, 37 percent limited the kinds of military operations or forces authorized to be employed, and 23 percent contained an expiration date.”

As one example: in the 1983 AUMF for Lebanon, Congress stated that the force “shall be limited to performance of the functions, and shall be subject to the limitations, specified” in a 1982 agreement between the United States and Lebanon (which capped the number of troops and stipulated that “the American force will not engage in combat”).

What is more, even the National Security Network’s study undercounts congressional limitations on Presidents’ engagement in military operations.

First, the data include only explicit conditions in AUMFs. Curt Bradley and Jack Goldsmith explain in a leading article in the Harvard Law Review that AUMFs have historically also included a host of implicit conditions and qualifications—and that such limitations have been well-understood and well-accepted by the three branches of government.

Second, the data include only ex ante conditions in the initial authorizing statute. As David Barron and Marty Lederman show in an exquisite twopart series, also in the Harvard Law Review: since the birth of the Republic, Congress has regulated Presidential actions by prescribing the means and modes of warfare once the armed conflict has begun. Barron and Lederman, for example, write:

“Congress, for its part, throughout our history has adopted intrusive measures regulating executive war powers, including some in the midst of battle. Consistent with the practices of the political departments, the Supreme Court has never held that any statutory limitations on substantive executive war powers have unconstitutionally infringed the core prerogatives of the Commander in Chief.”

(Barron and Lederman also show how Presidents have not rejected Congress’s prerogative to pass such measures.)

By way of contemporary examples, surely the Post doesn’t consider wartime congressional regulations such as the Detainee Treatment Act, the NDAA’s proscriptions for Guantanamo, FISA, and the War Crimes Act forms of “micromanagement” or outside of Congress’s proper role?

In sum, the Post steps far outside the traditions and historical practices of the three branches of government to claim that Congress should not play a role in regulating how war is waged. Conditions in an AUMF are simply measures for Congress to limit its own authorization. Calling such measures “micromanagement” cries out for an explanation of when exactly Congress should be able to define what it considers an acceptable limit on its authorization to use force.

It seems unlikely the Post really thinks that Congress should never be able to set such limits—the editorial board made no objections to limits on how detainees were to be treated in Afghanistan and Iraq, for example.  If that’s the case, then I urge caution before branding fairly conventional limits on Congress’s force authorization impermissible “micromanagement.”  It might be better labeled simply “management”—or oversight, or clear drafting—of the sort we might want Congress to do much more of.

Two notes in conclusion and in thinking more generally about what the 114th Congress might do:

1. None of the above means that any particular limit is or is not worth enacting (I, for one, am agnostic at best about restrictions on ground troops in fighting ISIL).  Each limitation should be evaluated on its own merits.

2. A limitation can, of course, generally be overcome and eliminated if and when the President makes the case to Congress that it is necessary and appropriate to do so—the conditions in an AUMF merely establish the baseline against which future inter-branch deliberations occur. 

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.