April 18, 2018
For some time now, Congress has abdicated its authority to declare war. The status quo is that we are at war anywhere and anytime the President says so.
So, Congress’s new solution is not to reassert Congressional prerogative but to codify the status quo.
It is clear upon reading that the Kaine/Corker AUMF gives nearly unlimited power to this or any President to be at war anywhere, anytime and against anyone, with minimal justification and no prior specific authority.
This is not an AUMF, it is a complete rewriting of power of the executive and constitutional separation of powers.
The new Kaine/Corker AUMF declares war on:
- The Taliban
- Al-Qaeda in the Arab Peninsula
- ISIS anywhere
- Al-Shabaab in Somalia and elsewhere
- Al-Qaeda in Syria
- Al-Nusra in Syria
- The Haqqani Network in Pakistan and Afghanistan
- Al-Qaeda in the Islamic Maghreb in Niger, Mali, Algeria, Libya, and Nigeria
- AND ASSOCIATED FORCES (as defined by the President) throughout the globe.
Previous AUMF have never codified associated forces. The Kaine/Corker AUMF not only codifies associated forces, but by conservative estimates declares war on over 20 nations with forces “associated” with either Al-Qaeda or ISIS.
Should Congress declare war or not declare war? Absolutely. Should we be having this debate? Absolutely.
It is indisputably clear that the authority exercised under the Authorization for the Use of Military Force of 2001 (P.L. 107-40) has become too broad and requires updating, but this Kaine/Corker AUMF is simply not the answer. Simply put, the Kaine/Corker AUMF provides an even more expansive war-making authority to the Executive Branch than the status quo.
The founders recognized that the Executive Branch is most prone to war, thus they placed the power to declare war with the legislature “with studied care.” Yet the Kaine/Corker AUMF would completely abdicate Congress’ power to declare war under Article I of the Constitution.
To be clear, handing war-making power to the Executive Branch is not an exercise of Congress’ power, it is the abandonment of that power.
Arguably, the Kaine/Corker AUMF delegates the Constitutionally explicit power of war declaration to the Executive branch and is therefore unconstitutional.
Expansion of authority as it pertains to groups:
The Kaine/Corker AUMF grants new, unchecked powers to the President in determining what groups qualify for the use of force. This includes the language in Section 3 and Section 5 expanding authority to “associated forces,” which would be the first time that this ambiguous phrase has been codified into law under an AUMF.
Expansion of authority as it pertains to States:
Perhaps more troubling is the level of authority granted to the Executive as it applies to authorizing military action against other nations. The Kaine/Corker AUMF conveys authorization for the use of force in Afghanistan, Iraq, Syria, Somalia, Yemen and Libya, though the bill’s passive inclusion of…