Legal Q and A
By Ben Scotch
Q. Aren’t questions of war and peace exclusively within the province of the federal government?
A. In general, the Congress and the President share war powers under the Constitution. The states do have some powers with respect to their state guards, but Congress has whittled away at the scope of these powers, particularly after 1903, when The Dick Act was passed creating the rudiments of the present dual system of joint state and federal National Guards.
But state National Guard members are only federalized, i.e., are incorporated into the National Guard of the United States, pursuant to federal law, typically when U.S. Armed Forces are deployed pursuant to a congressional authorization for the use of force, or for training. Our legal argument assumes, arguendo, that the 2002 Authorization for the Use of Military Force (AUMF) was valid authority for the President to initiate the use of military force in Iraq, and further assumes that the AUMF was enacted pursuant to the War Powers Resolution of 1973.
It is unclear how, when, and by whom hostilities initiated under the AUMF may be brought to a close. The principal division of power, and the center of the debate over winding down a war authorized by any authorization for the use of military force, are the respective powers of Congress and the President. It seems likely that so long as Congress continues to fund ongoing operations in Iraq, any congressional repeal of the AUMF (none seems likely in the immediate future) would not be effective against the President’s decision to continue operations. Congress is probably estopped to complain about continued operations, so long as it does not cut off war funding, but the estoppel would not necessarily apply to the states. Maryland Guard members were called up on the strength of the AUMF and no other underlying federal authorization.
As advocate and protector, Maryland has an interest in ensuring that its State Guard is appropriately and legally called into service.
Q. The 2002 AUMF cites two grounds for the use of force, the second of which is to “enforce all relevant United Nations Security Council resolutions regarding Iraq.” The principal Security Council Resolution on Iraq was Resolution 1441, adopted on November 8, 2002. Since the beginning of hostilities on March 20, 2003 there have been additional Security Council resolutions concerning Iraq. Can’t it be argued that U.S. forces are authorized to remain in Iraq to enforce these resolutions and that on these grounds the 2002 AUMF is, in effect, extended or expanded?
A. No, and for several reasons. First, and most basically, the AUMF may only refer to UN resolutions in existence, and hence incorporated by reference, on the date the AUMF became law. Nothing in the AUMF suggests that U.S. forces should be engaged to enforce future resolutions, the scope and content of which were necessarily unknown and unknowable in 2002. (And it would be an extreme example of impermissible delegation by Congress.)
Second, the Security Council resolutions before and after March 20, 2003 by their texts and context not only belie any attempt to interpret the AUMF as effectively extended or expanded, but on the contrary underscore that the AUMF has by its terms expired.
Security Council Resolution 1441 in November 2002 dealt with the threat to international security posed by Iraq’s WMD and its nuclear program.
The UN and the US acknowledge that the mission in Iraq has shifted dramatically since the war began in 2003. The specific goals of the AUMF–the triggers for federalization of National Guard members–have not been confirmed, extended, or re-validated by the evolution of Security Council resolutions on Iraq from 2002 to 2006. On the contrary, the Security Council resolutions that have passed have underscored that the goals of the AUMF have either been met or are no longer applicable.
