Notional Restraint

T he House of Representatives voted to repeal the 2002 Authorization of Military Force against Iraq this week. Senator Chuck Schumer said he would work to pass the same in the upper chamber, to “eliminate the danger of a future administration reaching back into the legal dustbin to use it as a justification for military adventurism.”

It makes sense. President Barack Obama cited the 2002 AUMF as his mandate for dealing with the Islamic State. His successor, Donald Trump, used long-ago AUMFs to justify a strike on Iran’s General Qasem Soleimani. It’s clear that these particular missions were never contemplated by Congress in 2002.

And so this repeal is held up as a necessary piece of constitutional hygiene that helps to restore the war-making powers to Congress, where the Framers of the Constitution put them.

This all sounds nice in theory, but it’s hard not to notice how often politicians explain that this act of constitutional hygiene is a great idea precisely because it does nothing, assuring us that the act has no practical effect on our current deployments. “The 2002 AUMF is no longer relevant and its repeal would not impact ongoing operations in the Middle East,” said Representative Mike Gallagher in a statement. “In fact, if you look at the legal justifications associated with military strikes in the Middle East, the primary justification is almost always either the 2001 AUMF or Article II authority. Where the 2002 AUMF is cited, it’s a secondary source of legal authority that is ultimately unnecessary.”

We don’t need a 19-year-old legal mandate for war; we have a far more expansive 20-year-old one. He wasn’t alone, of course. Democrat Steny Hoyer reassured voters that “repealing [the AUMF] now will not alter our current operations.” Even President Joe Biden has rushed to justify it by saying that currently there are “no ongoing military activities that rely solely on the 2002 AUMF as a domestic legal basis.”

But by admitting that where the 2002 AUMF is cited it is usually as a secondary source, we are admitting that not a single extra intervention over the past 19 years would have been changed by its repeal. So, not only is the constitutional hygiene a hypothetical, the supposed damage of leaving it on the books the past 19 years is notional.

The repeal of the 2002 AUMF is welcome, but it is not nearly as urgent as having a more proper debate about the post-9/11 AUMF that is the primary legal mandate for America’s interventions across the Middle East and increasingly in Africa. The Biden administration has made a little noise about “repealing and replacing” it, but the actual habit of our elected officials has been to avoid responsibility in these matters.

A 2013 vote on intervention against Assad was simply canceled as Congress realized how desperately unpopular such action was with the American public and after the United Kingdom’s parliament had declined the opportunity to endorse a broader war against the Syrian government. But, everyone in Washington knew, or ought to have known, that the Department of Defense and the CIA were already involved in Syria’s civil war based on the 2001 AUMF. The U.S. was training and providing weapons not just to anti-ISIS fighters but to anti-Assad ones. This often involved funding and equipping forces that were either cutouts or patsies for al-Nusra, the branch of al-Qaeda in Syria. Our legal mandate to fight al-Qaeda had shifted seamlessly into a legal authorization to support al-Qaeda. That’s the disgrace Congress ought to be working hard to prevent again.

But of course, it was this dynamic that means Congress is very unlikely to take back its constitutional powers in a meaningful way. Ultimately the problem is that democratic publics have a hard time supporting the kinds of peripheral wars that are on the outer edge of the American-led world order. For an imperial power, war powers more naturally reside with the executive. A republic places them with the people and their representatives. If we want a republican ordering of our war powers, we will require a republican foreign policy to match it.

One final thought. We also learned something from this vote. Donald Trump’s presidency, with its somewhat more limited vision of intervention, has not made the rest of elected Republicans more dovish than Democrats. A single House Democrat voted against the repeal of the 2002 AUMF. More than three-quarters of House Republicans voted not to repeal it. Republicans aren’t always republicans, if you catch my meaning.