Think Again: The Limitations in the President’s Draft AUMF Do Have Meaning

Several prominent commentators have argued that the limitations in President Obama’s draft AUMF against the Islamic State of Iraq and the Levant (ISIL) would be meaningless if adopted (see here and here). They base this argument on the fact that the 2001 AUMF, which does not contain those limitations, is still in effect and that the Obama Administration has claimed that it covers the fight with ISIL. They argue that since President Obama’s draft of an ISIL AUMF does not explicitly state that it supersedes the 2001 AUMF, a president could rely on the 2001 AUMF to take actions against ISIL, even when those actions would be prohibited by the ISIL AUMF.

This argument has become a significant element of the debate surrounding the White House’s new draft AUMF. Several elected officials (for example, here, here, and here) who are inclined to support limitations in any ISIL AUMF have adopted this claim as a reason to oppose the President’s proposal. While I am not a lawyer, this argument seems to reject any common sense reading of the draft AUMF and contradicts fundamental canons of statutory interpretation. To be clear, I am not addressing the possibility that a president decides to take action outside of what the law allows. But that is quite different than the claim that the 2001 AUMF would render any limitations in an ISIL AUMF legally meaningless. I cannot find any support in the law for such an interpretation.

The plain meaning of the draft AUMF imposes limits

The operative text of the draft AUMF reads, “The President is authorized, subject to the limitations in subsection (c), to use the Armed Forces of the United States as the President determines to be necessary and appropriate against ISIL or associated persons or forces as defined in section 5.” (Emphasis added.) It goes on to detail those limitations, including a prohibition on “enduring offensive ground combat operations.”

The first rule of statutory interpretation is to give effect to the plain meaning of the words. When a statute is clear and unambiguous, Congress will be presumed to mean what it says. The only reasonable interpretation of the phrase “subject to the limitations in subsection (c),” is that Congress intends for the use of force against ISIL to be limited. Under canons of statutory construction that should end the matter.

Moreover, the argument that the limitations in the draft ISIL AUMF would be meaningless contradicts another basic principle of statutory interpretation. 

Congress does not engage in meaningless acts

Another fundamental principle of statutory construction is that every word and phrase in a statute must be read to be useful and meaningful. In other words, there is a presumption that Congress does not pass meaningless laws.

After stating that the President’s authority is subject to limitations, the draft ISIL AUMF goes on to say that “[t]he authority granted in subsection (a) does not authorize the use of the United States Armed Forces in enduring offensive ground combat operations.” (Emphasis added.)

The argument that the draft AUMF would be toothless would deny any meaning to the phrases “does not authorize” and that the President’s authority “is subject to the limitations” rather than recognize their plain meaning — that the President’s authority to use military force against ISIL does not include authority for “enduring offensive ground combat operations.” Legitimate debate can be had about the meaning of “enduring offensive ground combat operations,” but not about the meaning of “does not authorize” and “subject to the limitations in subsection (c).”

The intention of this language is clearly to place some limitation on the use of ground combat troops. To hold the view that this language would not impose any limitations on the use of ground combat troops because the 2001 AUMF does not include this limitation would presume that Congress would intentionally adopt a phrase that has no meaning in defiance of statutory construction rules as well as the common sense reading of the text.

Once again, as I read the law, these points should end the argument. The clear language of the draft AUMF would impose limits on any ground campaign against ISIL. Nevertheless, the argument has been advanced that the Obama Administration’s claim that the 2001 AUMF also covers ISIL somehow undercuts the clear language of the proposed new AUMF. That argument conflicts with additional statutory construction rules.

The specific governs the general, and last in time

There is much disagreement with the Obama Administration’s assertion that the 2001 AUMF provides authority for military operations against ISIL, and Congress has not endorsed that claim. But those who question the efficacy of the proposed limits in the draft AUMF argue that given the administration’s claim, the continuing existence of the 2001 authority negates any limits in a new authorization. Although not spelled out, presumably this would be because the earlier AUMF covers ISIL without limits, rendering a later AUMF with limits ineffective. But even if the 2001 AUMF did cover ISIL and even if it somehow conflicts with a new AUMF, this argument contradicts two additional statutory construction rules: first, that the specific governs the general, and, second, that the last in time governs.

The operative text of the 2001 AUMF reads:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

There is no specific mention of ISIL in the 2001 AUMF. At most, it could only be considered a general statute as it relates to ISIL.

In contrast, the draft AUMF is explicitly directed at ISIL: “The President is authorized, subject to the limitations in subsection (c), to use the Armed Forces of the United States as the President determines to be necessary and appropriate against ISIL or associated persons or forces as defined in section 5.” (Emphasis added.)

Assuming, for the sake of argument, that there is a conflict between provisions in the 2001 AUMF that would apply to ISIL and provisions in the draft ISIL AUMF, a core canon of statutory construction commands that provisions written in the more specific form would govern. As the Supreme Court has explained, another “commonplace of statutory construction [is] that the specific governs the general.” This principle “reflects the fact that the specific statutory language constitutes a more accurate representation of the legislature’s purpose or intent than more general pronouncements concerning the same subject-matter.”

This result is also dictated by the last in time rule. This concept is one of the oldest in our legal tradition and goes by the Latin term leges posterior priores contrarias abrogant, or “subsequent laws abrogate contrary prior ones.” Again, if there were a conflict between the two authorizations, the ISIL AUMF provisions would abrogate any conflicting provisions in the 2001 AUMF applicable to ISIL as any ISIL AUMF would obviously come after the 2001 AUMF.

The clear intent of Congress would be to end authorization to strike ISIL following its expiration, if it adopted the draft language

Some claim that even though the President’s draft ISIL AUMF contains a three-year sunset clause, that the expiration of the ISIL AUMF may not end the authority to take military action against ISIL because the 2001 AUMF provides that authority and could still be in effect. But this reading defies common sense and any plausible interpretation of Congressional intent should it adopt the proposed sunset.

Should an ISIL AUMF adopted by Congress terminate through expiration or repeal, Congress’ decision must be given its clear intention. It would be nonsensical to interpret the decision to terminate the ISIL AUMF as intending to expand the authority of a future president to use military force against ISIL by reverting to what will then be a 17-year-old 2001 AUMF.

Overwhelming evidence in favor of limitations

I grant that there have been situations in which presidents and/or Congress have engaged in some form of sleight of hand regarding their intentions. And it is certainly possible that this or a future president could go beyond the authority approved by Congress. But I have yet to see any persuasive argument that the clear meaning and intent of the limitations in the draft AUMF are somehow legally meaningless. And crafting a challenge that they are seems an odd pursuit when the limitations in the President’s proposal are entirely consistent with the policy and strategic decisions he has outlined from the very beginning of US military action against ISIL. 

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About the Author(s)

Ken Gude

Senior Fellow with the National Security Team at American Progress - Follow him on Twitter (@KenGude).