Posted yesterday at Public Discourse is a short piece I wrote with Professor Robert P. George of Princeton University on the unconstitutionality of President Obama’s proposed (so-called) “Authorization for Use of Military Force” against ISIS.

Obama’s draft AUMF is almost comically disingenuous. It does not “authorize” anything. Rather, as several others have noted, Obama’s draft appears calculated to de-authorize – to restrict, impair, hamper, limit – existing legal authority to wage war against ISIS, flowing from the Authorization for Use of Military Force of September 18, 2001. The 2001 AUMF is the legal authority on which the administration has relied for its (limited) use of military force against ISIS to date. The whole point of the new pseudo-authorization would be to put restrictions on such force. (It is not at all clear that it actually would have that legal effect. It does not in explicit terms repeal the existing authorization – it merely purports to “grant” a much smaller scope of authority – but that is clearly its design.)

But our broader point is that the substance of Obama’s proposed restriction – its purported prohibition on the use of ground forces – is a flatly unconstitutional interference with the President’s constitutional powers as the Commander in Chief of the nation’s military, waging a constitutionally authorized war. It is extraordinary that a sitting president would propose such an obviously unconstitutional restriction on presidential military authority.

We propose that Congress scrap the Obama draft entirely. We also propose a simple substitute resolution reaffirming the September 2001 AUMF.

Here’s an excerpt:

President Obama’s draft “Authorization for Use of Military Force” against ISIL is not merely dishonest, it’s unconstitutional.
It is not a serious effort to receive authorization to use military force against this horrendous al Qaeda offshoot. Such authorization already exists—as the administration concedes—by virtue of Congress’s sweeping post-9/11 Authorization for Use of Military Force (AUMF) of September 18, 2001. . . . Rather, the whole point of Obama’s painfully obvious ploy is to try to de-authorize the use of military force against ISIL —to constrain, hamstring, limit, and hobble the war on terror directed against violent Islamist extremism: No combat ground troops; a three-year time limit on any use of force; a narrow definition of who counts as an ISIL ally or “associated force” against whom (limited) force can be employed; and an explicit repeal of the separate 2002 authorization for use of force in Iraq.
As many have noted, each of these provisions constitutes a proposed narrowing of existing legal authority to wage war against ISIL and any person or group conspiring with it. Obama’s authorization authorizes nothing. It is, in legal effect, entirely a proposed retreat. . . .
But of even greater concern than the Obama resolution’s obvious dishonesty is its flagrant unconstitutionality. Not only does it implicitly de-authorize force, but it would do so unconstitutionally, by purporting to limit the military tactics and choices of the commander in chief in time of war. . . .
Congress should immediately scrap the Obama draft in its entirety. It should pass a straightforward resolution along these lines:
The Congress reaffirms the grant of Authorization to Use Military Force of September 18, 2001 in all respects, and specifically authorizes the use of all necessary and appropriate force against ISIL (also known as “ISIS” or “Islamic State”) and all persons, organizations, or nations that the President determines to be allied with, harboring, or assisting ISIL in any fashion.
Such a resolution would confirm existing legal authority, not weaken it. It would affirm the administration’s legal justification for its war efforts against ISIL over the past six months. It would uphold the future flexibility of this president, and his successor, to fight ISIL in the manner appropriate to the circumstances at the time. It would not encourage or embolden our enemies. It would not demoralize our allies. And it would be fully constitutional.
Would President Obama actually veto such an authorization? If so, such a veto would demonstrate only that this president does not truly wish to fight and defeat ISIL. It would show that the point of his “authorization” proposal was to fight and defeat future presidential power to wage war against this ruthless group of murderers and its allies.