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12/19/2015

Jack Goldsmith on Authorizing the War Against the Islamic State
Michael Ramsey

At Lawfare, Jack Goldsmith argues that the omnibus spending bill just passed by Congress constitutes an authorization to use force against the Islamic State because it approves spending for operations against the Islamic State.  As he argues (in a post written just before the bill passed):

I have not read the vast majority of the 2000-page Omnibus bill that contains the fiscal year 2016 Defense Appropriations bill.  But presumably Representative Hal Rogers, the Chairman of the House Appropriations Committee, has read it.  And he says that the bill “includes funds to combat the real-world threat of the Islamic State of Iraq and the Levant (ISIL).”  The funds are probably located in the “$58.6 billion in Global War on Terror/Overseas Contingency Operations (GWOT/OCO) funding” that is sprinkled around the bill.  The Obama administration has previously made clear that GWOT/OCO funds are used in large part for the fight against ISIL, and it surely did so again in places I cannot now find.   

If this bill clearly appropriates funds for the fight against ISIL, then Congress is about to vote for an authorization to use force against ISIL.  As this OLC opinion (pages 332-339) explains:

[B]asic principles of constitutional law — and, in particular, the fact that Congress may express approval through the appropriations process — and historical practice in the war powers area, as well as the bulk of the case law and a substantial body of scholarly opinion, support the conclusion that Congress can authorize hostilities through its use of the appropriations power.  Although it might be the case that general funding statutes do not necessarily constitute congressional approval for conducting hostilities, this objection loses its force when the appropriations measure is directly and conspicuously focused on specific military action.

I think this is probably correct as an originalist matter (embracing the qualification in the last sentence above that "the appropriations measure is directly and conspicuously focused on specific military action").  As I argued here, the best way to think about congressional authorizations to use force (as opposed to formal congressional declarations of war) is that they are delegations to the President.  They allow, but (typically) do not require, the President to use force in specified places or against specified opponents.  Thus they do not "declare war" in themselves, but they authorize the President to declare war (whether by proclamation or by using force).

Assuming these authorizations satisfy the non-delegation doctrine (whatever one thinks it take to do so), there should be no constitutional objection to them.  If the authorization is "directly and conspicuously focused on specific military action" it should satisfy all but the strongest version of the non-delegation doctrine.  And war-powers-related delegations have a long history, going back to the 1798 Quasi-War and the wars against the Ohio Valley tribes in the early 1790s.

If war powers delegations are constitutional, then I don't see why they couldn't take the form of spending authorizations.  A spending authorization seems necessarily to approve the underlying action.  If I say to my son "Here's $2 to buy an ice cream," and he buys an ice cream, he is going to be quite surprised if I then say "hey, I didn't say you could have an ice cream."  Again, the specificity limit is key: simply giving my son $2 as an allowance does not authorize him to spend it on anything he wants (such as ice cream).  But if the ice cream is specifically mentioned or clearly contemplated when I hand out the money, it seems hard to say that it isn't authorized.