A New Prospect for Congressional Debate on an AUMF Against ISIL?

This week has brought some interesting developments in Congress related to authorizations for the use of military force in the fight against ISIL. Most recently, Rep. James McGovern (D-Mass.) introduced a concurrent resolution in the House attempting to force the chamber to vote on whether to remove American troops from Iraq and Syria. Employing various procedural mechanisms, it is possible that McGovern will be able to force a vote in the House on his resolution within the next few weeks.

The text of the resolution, co-sponsored by Reps. Walter Jones (R-N.C.) and Barbara Lee (D-Calif.), says:

CONCURRENT RESOLUTION
Directing the President, pursuant to section 5(c) of the War Powers Resolution, to remove United States Armed Forces deployed to Iraq or Syria on or after August 7, 2014, other than Armed Forces required to protect United States diplomatic facilities and personnel, from Iraq and Syria.

Resolved by the House of Representatives (the Senate concurring),

SECTION 1. REMOVAL OF UNITED STATES ARMED FORCES FROM IRAQ AND SYRIA.
Pursuant to section 5(c) of the War Powers Resolution (50 U.S.C. 1544(c)), Congress directs the President to remove United States Armed Forces deployed to Iraq or Syria on or after August 7, 2014, other than Armed Forces required to protect United States diplomatic facilities and personnel, from Iraq and Syria—

(1) by no later than the end of the period of 30 days beginning the day on which this concurrent resolution is adopted; or
(2) if the President determines that it is not safe to remove such United States Armed Forces before the end of the period, by no later than December 31,2 015, or such earlier date as the President determines the Armed Forces can safely be removed.

The War Powers Act requires that concurrent resolutions for the removal of armed forces engaged in hostilities without a declaration of war or specific statutory authorization must be reported out of committee (with the committee’s recommendations) within 15 calendar days of their introduction. Once it has been reported out, it “shall be voted on within three calendar days thereafter, unless [the relevant chamber] shall otherwise determine by yeas and nays.” Per Politico, if the House Foreign Affairs Committee fails to act within the next 15 days “the resolution can then be brought up for a vote once it has ‘ripened’ the week of June 22, specifically on the first day of session that week, June 23.” Using the same statutory approach, McGovern was able to get a vote on a similar concurrent resolution last July, which passed overwhelmingly in a 370–40 vote. That resolution was not subsequently approved by the Senate.

McGovern’s proposal comes close on the heels of Rep. Lee’s amendment to the 2016 House Defense Authorization bill that reminded Congress of its “constitutional duty to debate and determine” whether to authorize the use of force against ISIL. Though non-binding, this amendment passed out of the Appropriations Committee in a 29-22 vote with bipartisan support. The text of Lee’s amendment reads:

At the end of the bill (before the spending reduction account), insert the following:

SEC. __. (a) Congress finds that —

(1) the United States has been engaged in military operations against the Islamic State of Iraq and the Levant (ISIL) for more than 8 months;
(2) President Obama submitted an authorization for the use of military force against ISIL in February 2015; and
(3) under article 1, section 8 of the Constitution, Congress has the authority to “declare war”.

(b) Therefore, Congress has a constitutional duty to debate and determine whether or not to authorize the use of military force against ISIL.

Based on these two pieces of legislation and the upcoming House consideration of Defense Department appropriations, there may be more movement in the debate over authorizations for the use of military force. Watch this space for more as things develop. 

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