How Biden Benefits From Limiting His Own War Powers

Last week, the Biden administration announced it wanted to work with Congress to repeal the 2001 and 2002 Authorization for Use of Military Force (AUMF) and replace them with a “narrow and specific framework that will ensure we can protect Americans from terrorist threats while ending the forever wars.” In other words, President Joe Biden appears to want Congress to restrict the authorization under which U.S. forces are currently operating and thus constrain his own ability to order them into action. Why would he do such a thing?

A bit of background: The 2001 AUMF was passed a mere three days after the 9/11 attacks (with only one dissenting vote in the House of Representatives). It was narrowly focused on al Qaeda, and it authorized the president “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.” The 2002 AUMF authorized the use of force to “defend the national security of the United States against the continuing threat posed by Iraq” and was in effect the green light for the George W. Bush administration’s ill-advised invasion of that country in 2003.

Unfortunately, these two laws have been stretched beyond recognition in the years since they passed. The 2001 law was originally intended to authorize military action against al Qaeda itself, but Presidents George W. Bush, Barack Obama, and Donald Trump invoked it to justify a wide variety of other actions, including attacks on the Islamic State (which was fighting against al Qaeda at the time) or the Bashar al-Assad regime in Syria. Similarly, even though the war in Iraq was declared officially over in 2011, the Obama administration invoked the 2002 AUMF as an “alternative statutory basis” for the campaign against the Islamic State, and the Trump administration claimed that the assassination of Iranian General Qassem Soleimani in January 2020 fell under its aegis as well.

Extending congressional authorizations in this way makes a mockery of the rule of law as well as the more fundamental principle that presidents should not be able to go to war on their own or expand military actions beyond their original mandate. It makes perfect sense, therefore, for Biden to seek to replace these outmoded justifications with legislation tailored for our present circumstances and military requirements.

But at another level, Biden’s actions might seem rather puzzling. No matter what Biden or his advisors personally believe about the wars the United States is currently fighting, why would they favor a “narrow and specific framework” that might limit their freedom of action down the road? Indeed, given that Congress—and especially the Senate—is currently balanced on a knife’s edge, why would any president want to create a situation where he might want to order military action and be stymied by the inability to command a majority on Capitol Hill? Even if only hypothetical, why would any sensible leader seek to tie his own hands in this way?

I can think of at least three good reasons.

First, let’s not rule out the possibility that Biden—who spent most of his political career on Capitol Hill and chaired the Foreign Relations Committee—genuinely thinks this is simply the right thing to do. The founding fathers gave Congress the authority to declare war—not the president—and although that principle has been greatly diluted in the past 75 years, Biden may believe that Congress is entitled to a greater role in debates over the use of force than it has exercised in recent decades.

Second, even as president, Biden has an interest in getting Congress to take greater ownership over the United States’ far-flung military activities. When presidents can treat prior authorizations as a blank check to justify whatever they want the military to do, members of Congress can sit back and criticize their decisions without having to take responsibility themselves. Doves can complain that presidents are misusing their authority and leading us into pointless quagmires, and hawks can express their outrage whenever a president fails to take some military action they favor. By contrast, when members of Congress actually have to vote for or against an authorization to use force, they can be held responsible for their decision—and sometimes with telling effects. The presidential hopes of former Sen. Sam Nunn, a Georgia Democrat, took a fatal hit when he opposed the Gulf War (which ended in a military triumph), and Sen. Hillary Clinton’s decision to support the 2002 AUMF authorizing the invasion of Iraq played no small part in her defeat by Obama (who had opposed the war) in 2008. At the very least, such circumstances force legislators to pay attention to what their constituents want.

If Biden wants to make it harder for members of Congress to carp from the sidelines, asking them to negotiate and then vote for (or against) a new AUMF is a canny move. But that’s also why getting a new agreement won’t be easy; members of Congress will undoubtedly be reluctant to be put on the spot. Obama spoke openly of his desire to “refine and ultimately repeal” the original 2001 AUMF, and in 2015, the administration formally requested new authorization (distinct from the 2001 AUMF) for operations against the Islamic State. But Congress wasn’t interested in having to take a position and simply continued to fund counterterror operations under a law that was originally passed to deal with a different foe.

Third, and related to the second point, a more “narrow and specific” AUMF might give Biden an excuse not to take actions that he thinks are unwise while shifting some of the decision-making responsibility over to Capitol Hill. Given the United States’ self-appointed role as global police force (or “indispensable power,” “reluctant sheriff,” etc.), all presidents face constant pressure to do something whenever something unfortunate happens in some corner of the world. Such moments are typically framed as tests of U.S. resolve, credibility, and presidential courage, and any failure to act will be seized upon by hostile pundits and political rivals, even when there are no good options and the actions being proposed might make a bad situation worse.

In this way, a narrower and more restrictive AUMF could give Biden an out when grandstanding hawks try to stampede him into new military adventures. If a new AUMF does not permit an action the president opposed, Biden can turn to Congress and say, “if you want me to do something, grow some spine and vote a separate authorization for it.” If hard-liners can’t get the votes, Biden can invoke the lack of popular and legislative support to justify his restraint.

Interestingly, Obama employed this tactic in 2013 when he announced he was going to seek congressional approval to use force against the Assad regime in Syria after it used chemical weapons in defiance of Obama’s “red line”: Both public and congressional support for military action were lacking and in the end, no action was taken. Although Obama did not escape criticism for his decision, it was consistent with congressional and public opinion, and it prevented deeper U.S. involvement in an intractable conflict.

Of course, there is a bit of smoke and mirrors going on here. A more “narrow and specific” AUMF doesn’t mean that Biden would give up all his authority over U.S. military operations. Congress won’t pass such a law, and Biden would veto it anyway. Realistically speaking, he will still have plenty of latitude to use force as he wishes, especially in response to direct and imminent threats, to defend allies, or to protect U.S. lives abroad. In practical terms, repealing and replacing these outmoded AUMFs won’t stop Biden from doing things he really wants to do; it will only restrain him when that’s what he prefers. And if asking for a new AUMF encourages our elected representatives to take their constitutional responsibilities on national security matters a bit more seriously, I’m all for it.

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