At Volokh Conspiracy, Ilya Somin, Some details of the Obama administration’s proposed authorization for use of military force against ISIS [Updated with link to actual wording of the proposal]. With this comment:
However, as I explained in my post commenting on Obama’s call for an ISIS AUMF in the State of the Union, an after-the-fact AUMF does not cure the administration’s unconstitutional actions in waging war without congressional authorization for some six months, nor its previous similarly unconstitutional war against Libya in 2011. More will be needed to reestablish the constitutional norm that the initiation of war requires congressional approval. As a first step, Congress should at least couple its ISIS AUMF with a resolution indicating that the president acted illegally when he failed to get authorization in advance, and emphasizing that future interventions must have such authority. Otherwise, there is a danger that courts and future executive branch officials might use the wars against ISIS and Libya as a precedent for the proposition that Congress has acquiesced to unilateral presidential initiation of war. Giving presidents the power to start wars on their own initiative is both unconstitutional and likely to have dangerous consequences.
My view is that the administration's request is tantamount to a concession that it does not have independent authority for the ISIS/ISIL/IS project. That's an important precedent in the right direction, even if it does not go as far as Professor Somin would like (and even though I think the president might have authorization from prior AUMFs).
Posted at 5:25 PM