I. Introduction

One congressional grant of authority, aimed explicitly at the forces involved in the September 11 attacks, has become the legal basis for effectively all military operations in the Middle East and Northern Africa to date.[1] One congressional grant of authority is abused to launch military campaigns in countries never intended, against terrorist organizations that would not even exist for years to come.

An abundance of scholarship has been devoted to offering ways by which the Authorization for Use of Military Force of 2001 (AUMF) can be amended, replaced, or repealed in order to better contain the kind of run-away, executive power the AUMF currently, unwittingly confers. This Comment is the first of its kind to suggest that real legal reform to the way the AUMF is used today may come from an unexpected source—the Supreme Court.

First, this Comment argues that the nondelegation doctrine may soon be reconceptualized in a way that could provide the platform for judicial challenge to the unlawful delegation of power under the AUMF.[2] The 2019 splintered opinion of Gundy v. United States[3] suggests a willingness amongst the dissenters on the Court to revisit—and even abandon—the current intelligible principle test of the nondelegation doctrine for a return to three traditional considerations of the doctrine.[4] The dissenters are likely to become the majority soon, and their preferred application of the doctrine provides the prospect of a judicial review of the constitutionality of United States’ military efforts in the Middle East and Northern Africa.

This Comment secondly argues that the fast and loose drafting of the AUMF lacks sufficient limitations, guidance, and criteria to place meaningful limitations on the Executive’s power under the statute.[5] Consequently, Congress has unlawfully delegated to the Executive unchecked discretion to engage in armed conflict with the Islamic State, a terrorist organization that was not in existence[6]—much less considered—by legislatures when the AUMF was enacted. To demonstrate this point, this Comment walks through a potential analysis of the AUMF under the traditional considerations of the nondelegation doctrine proposed in the Gundy dissent.[7]

While there is no way of knowing how the Court would rule on such an issue, the significance of Gundy does not lie solely in the outcome of a challenge to the AUMF. Gundy opens the door for a potential judicial challenge, and this alone provides a moment of review where the Executive must defend and justify its previous and continual operations against the Islamic State by finding authority in the AUMF or establishing independent authority in the President’s Article I powers. This moment would provide the Court the opportunity to reevaluate the statute’s value and efficacy in light of more recent conditions and set in stone unanswered questions regarding the authority and scope of the AUMF.

II. Gundy v. United States

A. Procedural and Factual Background

Gundy came before the Court as a nondelegation doctrine challenge to the Sex Offender Registration and Notification Act (SORNA) of 2006.[8] SORNA provides a uniform sex offender registration system and sets out the procedural requirements for registration[9] with the express purpose to “protect the public from sex offenders . . . [by] establish[ing] a comprehensive national system for the registration of those offenders.”[10] To accomplish this, the statute requires all offenders be registered in the system prior to completing their sentences.

For individuals convicted of a sex offense prior to the Act, Congress charges the Attorney General “to specify the applicability of the requirements . . . to sex offenders convicted before the enactment of th[e] chapter . . . and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).”[11] One year after the enactment, the Attorney General ordered all SORNA’s registration requirements be applied to all individuals convicted of sex offences prior to the Act.[12]

Herman Avery Gundy failed to register as a sex offender upon moving to New York after his release in 2012 and was subsequently convicted as a pre-Act offender under SORNA.[13] Upon certiorari, Gundy asserted that SORNA impermissibly delegated legislative authority to the Attorney General in violation of the nondelegation doctrine.[14] Under the nondelegation doctrine, “a statutory delegation is constitutional as long as Congress ‘lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.’”[15] The intelligible principle test illustrates the traditional principle that Congress may not delegate responsibilities left for the Legislative Branch to the Executive Branch.[16] The test was dormant for many years, until its resurgence in the 1940s when attorneys claimed it displaced prior traditional teachings.[17]

B. Holding

Gundy argued that the statute gave no intelligible principle to guide the Attorney General in enforcing the statute. Instead Gundy claimed Congress conferred unchecked plenary power to decide whether to apply the registration requirements to pre-Act sex offenders with no limitation on the Attorney General’s ability to redecide who is covered by the statute at any given time.[18]

The Court responded that Gundy’s interpretation lacked consideration for the “context, purpose, and history” of the Act.[19] The Court first addressed the context of the Act to dismiss Gundy’s reading by pointing to the Court’s previous interpretation of the Act as requiring the Attorney General to apply registration requirements to all pre-Act sex offenders as soon as it became feasible.[20] Accordingly, the Attorney General’s authority to specify is limited to how pre-Act sex offenders are registered, not whether they are registered in the first place.[21] Secondly, the Court pointed to the word “comprehensive” in the statute’s declaration of purpose to reaffirm the Act’s intention to include both pre-Act and post-Act sex offenders.[22] Lastly, the Court took a look back at the reason SORNA was adopted—to close the loopholes in sex offender registration—in order to determine that Congress intended to include pre-Act sex offenders under the Act.[23] Considering these three factors, the plurality found SORNA to be constitutional.[24]

C. Concurrence and Dissent

Justice Alito concurred with the judgment, refraining from forming an opinion because he could not determine whether SORNA provided an intelligible principle to satisfy the nondelegation doctrine.[25] Instead, Justice Alito voiced a willingness to reconsider the intelligible principle approach to the nondelegation doctrine altogether.[26]

In the dissent, Justice Gorsuch took this attitude another step further by advocating to abandon entirely the intelligible principal test in determining whether Congress has impermissibly delegated legislative power to the Executive.[27] The dissent found no basis in the Constitution for the intelligible principle test and explained that previous courts have warped and abused the test to permit delegations of legislative authority that would have otherwise been unconstitutional under traditional considerations of the nondelegation doctrine.[28] The dissent pointed to the lengths the framers of the Constitution went to ensure the power to make laws remained exclusively in the hands of Congress. The dissent made a cogent call for a return to the traditional teachings of the nondelegation doctrine, articulating three considerations for determining if the doctrine has been violated.[29]

D. The Three Traditional Considerations of the Nondelegation Doctrine

1. Congress May Delegate to the Executive Authority to Fill in the Details.

First, Congress may not delegate the lawmaking power to other branches, but may allow other branches to “fill up the details” of a general provision.[30] Chief Justice Marshall drew a distinction between “important subjects, which must be entirely regulated by the legislature itself,” and “those of less interest, in which a general provision may be made, and power given to [the Executive] to fill up the details.”[31] In other words, the Executive may make minor alterations and additions to fill in a statute so long as it does not change Congress’s meaning or purpose for the statute.

2. Congress May Delegate to the Executive the Authority to Fact-Find.

Second, Congress may allow the Executive discretion to determine the applicability of a statute so long as the Executive demonstrates some intelligible fact-finding for coming to the determination.[32] To effectively condition legislation upon executive fact-findings, Congress must set standards that are “sufficiently definite and precise” to ascertain whether the Executive has enforced the statute in accordance with Congress’s guidance.[33]

3. Congress May Delegate Nonlegislative Functions to the Executive.

“Third, Congress may assign the [E]xecutive and [J]udicial [B]ranches . . . non-legislative” authorities.[34] Congress may confer broader discretion to the Executive in matters which Congress and the Executive share arguably concurrent and overlapping authority, as in the case of foreign affairs and national security, but under no circumstances may Congress delegate powers and authority that are exclusive to the Legislative Branch.[35]

E. Dissent’s Analysis Under Traditional Considerations of the Nondelegation Doctrine

Under the dissent’s approach to the nondelegation doctrine, SORNA does not pass muster.[36] First, it found that SORNA lacked any textual guidance for how sex offenders and executive actors are to carry out registration requirements.[37] By failing to provide the Attorney General with any standard for determining when or how to apply SORNA to pre-Act sex offenders, Congress punted to the Executive the power to create its own policies for when and to whom SORNA applied. Without guidance, Congress left the Attorney General with free rein to impose registration requirements however she saw fit, absent any textual limitation—a lawmaking authority far beyond filling in the details or making minor alterations and additions as permissible under the Constitution.[38]

In addition to finding that SORNA failed to provide the Attorney General with clear guidance as to how to apply her discretion, the dissent found that SORNA did not qualify as “conditional legislation subject to an executive fact-finding.”[39] The dissent demonstrated the disparity between the provisions of SORNA and the constraints in the Controlled Substance Act, which required the Attorney General to consider the history, scope, duration, significance, and risk of a drug before it was added to a list of temporarily prohibited drugs.[40] SORNA does not set forth any facts for the Attorney General to consider when determining whether the registration requirements of SORNA apply and provides no standard or criteria for measuring the sufficiency of the Attorney General’s fact-finding.[41] Because the statute lacked any criteria for sufficient fact-finding or requirement to report the Attorney General’s fact-finding,[42] the dissent determined that Congress delegated “unfettered discretion” in deciding who was covered under the statute to the Attorney General.[43] “Far from deciding the factual predicates to a rule set forth by statute, the Attorney General himself acknowledges that the law entitles him to make his own policy decisions.”[44]

Lastly, the dissent briefly dismissed any concern regarding overlapping congressional and executive authority, but reminded readers that in such a situation, Congress may delegate broad executive authority regarding the conduct of matters in overlapping authority.[45] The dissent attributed the instability and discretionary nature of SORNA edicts and nonexistence of fair notice requirements to the danger of placing the power to make laws in the same hands as those with the power to execute them.[46]

F. The Future of the Nondelegation Clause After Gundy

While both the plurality and dissent presented good reason to take their respective approaches, the concurrence and dissent suggest that the doctrine embraced in Gundy might soon be abolished if the Court were to come across the question again in the near future.[47] Notably, Justice Kavanaugh was not in office at the time Gundy was argued, and did not participate in the Gundy decision.[48] While Justice Kavanaugh’s theory on separation of powers has tended to lean in favor of a strong Executive,[49] a review of Justice Kavanaugh’s judicial rulings and nonjudicial writing demonstrates a pattern of stressing the importance of the separation of powers and enforcing the intent of the Constitution’s Framers when it is clear.[50] During his time on the D.C. Circuit Court of Appeals, Justice Kavanaugh touted the most conservative overall voting record from 2003 to 2018.[51]

For these reasons, Justice Kavanaugh is likely to join Justices Gorsuch, Roberts, and Thomas, “which might bring Justice Alito into the fold.”[52] If they are successful in displacing the intelligible principle test and reinforcing the “traditional teachings” of the nondelegation doctrine, this new reading of the doctrine could open the door for judicially challenging other legislative delegations of power to the Executive such as the current application of the AUMF.[53]

III. The Authorization for Use of Military Force

A. The 2001 Authorization for Use of Military Force

Within days of the catastrophic attacks on September 11, 2001, Congress authorized President George W. Bush to respond to the September 11 attacks with the use of military force.[54] Significantly, when Congress passed the joint resolution—the 2001 Authorization for Use of Military Force—the United States still could not confirm who was responsible for the September 11 attacks and where they operated.[55] It is these sixty words that gave the Executive congressional authorization to conduct military operations against al Qaeda, the Taliban, and ostensibly, the Islamic State:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.[56]

B. Complications of the Authorization for Use of Military Force

The severity of the September 11 attacks and imminence of another required Congress to act immediately—when the enemy, their affiliations, and the regions in which they operate were still unknown.[57] This pinned an overnight need for military authorization against Congress’s ability to draft carefully considered and well-informed legislation, producing imperfections in the AUMF. The immense pressure on Congress to act is evident in the text of the statute, which leaves out material features necessary to properly authorize the Executive to engage in military force.[58]

The AUMF makes no mention of al Qaeda or the Taliban, the two organizations believed, at the time, to be responsible.[59] The authorization makes no reference to time.[60] It provides no limitations on the temporal length of an operation, how long the law is to have effect, or conditions that would cause the Executive’s power under the AUMF to terminate.[61] Lastly, Congress gave no instruction as to the geographical boundaries of the authorization.[62] In the absence of material features, Congress unwittingly delegated to the Executive unbridled authority to use the AUMF on individuals and groups in regions never intended by Congress.

IV. Al Qaeda, The Taliban, and the Islamic State

A. Threat of a New Kind

The threats raised by the September 11 attacks were the first of their kind in many respects; it was the first time the United States had a stateless, nonuniform, clandestinely-operating enemy which proved to be difficult to identify and track.[63] Although it is uncontested that the AUMF gives the Executive the authority to use military force against Afghanistan, al Qaeda, and the Taliban, it is less clear how the Executive could interpret the AUMF to grant perennial and unilateral authority to engage in military acts against individuals and organizations not codified and in regions not contemplated by Congress. A background of the history and distinction between al Qaeda, the Taliban, and the Islamic State provides the foundation for understanding how the application of the AUMF to the Islamic State today could be challenged as unconstitutional under a new nondelegation doctrine.

B. Al Qaeda

Though it was unclear during the panic of the attacks, Osama bin Laden quickly became the Executive’s prime suspect as the architect behind September 11.[64] Bin Laden served as the founder and top militant leader of the Islamic international terrorist organization al Qaeda, operating out of Afghanistan.[65] Bin Laden established al Qaeda in the late 1980s as an outgrowth of the Services Office, a clearinghouse providing information, financing, and recruiting in support of Muslims in opposition to the 1979 Soviet invasion of Afghanistan.[66] Al Qaeda has viewed the United States as its number one adversary for decades, not only because the country’s legal system and western culture embody the bane of al Qaeda’s existence, but because of the United States’ continuous involvement in the Muslim world, providing support to Muslim majority countries that were gravitating away from Islamic law, towards a more western-like democracy.[67]

C. The Taliban

Due to its supportive role in al Qaeda history, the Taliban was held tangentially responsible for the September 11 attacks. The two militant Islamic extremist groups have been in alliance for more than two decades.[68] The Taliban held power in Afghanistan from 1996 to 2001[69] and provided al Qaeda a safe harbor and home base in Afghanistan for its international militant operations.[70] When Taliban leader Mullah Omar refused to deliver bin Laden to the United States in late 2001, the Taliban became just as much of a September 11 enemy as al Qaeda.[71]

D. The Islamic State

In 2003, a group led by Abu Mu’sab al-Zarqawi conducted a sequence of terrorist attacks in Iraq, prompting bin Laden to approach al-Zarqawi with the proposition of merging his group with al Qaeda.[72] Al-Zarqawi pledged loyalty to bin Laden and al Qaeda publicly endorsed al-Zarqawi’s group as “al Qaeda in Iraq” (AQI) in 2004.[73] However, tensions rose between al Qaeda and AQI when civil war broke out in Syria in 2011.[74] AQI used the opportunity to expand its control in the Middle East, establishing operational bases, recruiting Syrians in large numbers,[75] and eventually gaining control over a region across Iraq and Syria the size of Britain.[76] By 2013, the terrorist group disassociated from al Qaeda, renaming itself the Islamic State of Iraq and Syria (ISIS or the Islamic State).[77]

With this understanding of the distinctions between these separate groups, an analysis of the AUMF can be performed under a revitalized traditional approach to the nondelegation doctrine to demonstrate the separation-of-powers issues the AUMF presents, how the AUMF fares against each element of the traditional approach to the nondelegation doctrine, and the significance that a judicial review could have on the legal foundations of America’s larger military efforts.[78]

V. Traditional Considerations of the Nondelegation Doctrine Applied to the AUMF

If a judicial challenge to the Executive’s authority under the AUMF were to come to the Court under the reinstated traditional nondelegation doctrine inquiry, the Court could find the AUMF unconstitutional because it (1) delegates the Executive with unbridled discretion to enforce the AUMF wherever and against whomever it wishes—far beyond the mere discretion to fill in the details of the statute; (2) fails to provide a sufficient standard for measuring executive fact-finding; and (3) delegates legislative authority to the Executive, running afoul of traditional notions of separation of powers.

A. Executive Authority Beyond Mere Detail Filling

To determine whether Congress unconstitutionally divested itself of its legislative powers when it enacted the AUMF, the nondelegation doctrine inquiry begins by asking whether Congress has intentionally or unintentionally delegated to the Executive the power to make its own policies, as opposed to filling in the details.

1. The Executive Authority to Determine Who is Covered Under the AUMF.

The Legislative Branch has given the Executive authority so vast that it has free rein to write its own rules and determine who, when, and where the AUMF provides authorization to use military force—much like the Attorney General’s authority to determine SORNA registration requirements in Gundy.[79] The Executive has neatly interpreted Congress to approve the use of force against (1) Afghanistan, as the nation that willingly harbored al Qaeda under the Taliban’s rule; (2) al Qaeda and its members as the “organizations . . . or persons”[80] who perpetrated the September 11 attacks;[81] and (3) the Taliban as the organization that harbored al Qaeda and its members.[82] However, the issue lies in how closely, if at all, a nation, organization, or person must be tied to the events of September 11, and what criteria and standards must be met for valid enforcement. Within the language of the AUMF, it appears that this nexus question is determined by the Executive and the Executive alone.[83] This broad grant of discretion has allowed three administrations to exercise the AUMF against the Islamic State under the fallacy of “associated forces.”[84]

The Islamic State did not come into existence until 2003—two years after the September 11 attacks.[85] As such, it is impossible for AQI to have “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”[86] This leaves the group categorically excluded from the AUMF, meaning not only does the Executive lack the congressional authorization necessary for this current use of military force,[87] the Executive has encroached on Congress’s exclusive power to promulgate laws by substantially expanding its authority under the AUMF when it reads “associated forces” into the AUMF.

The Executive has materially changed the purpose and function of the AUMF by functionally writing in a self-authorization to use military force against “associated forces” of al Qaeda and the Taliban.[88] In a 2004 order related to the AUMF, Deputy Secretary of Defense Paul Wolfowitz defined enemy combatants for the purpose of the AUMF to include individuals who are “part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.”[89] The Executive has continued to operate under its self-made policy, substantially expanding the AUMF to cover any nation, organization, or person the Executive alone decides is even remotely affiliated with al Qaeda or the Taliban.[90]

Under a new reading of the nondelegation doctrine, the Court would be hard-pressed to find that the Executive’s addition of “associated forces” to the AUMF is a mere alteration or filling-in of the details. The addition of “associated forces” in the Executive’s understanding of the scope of the AUMF has allowed the Executive to make material policy changes, including the Islamic State under its umbrella of authority. This delegation of power to the Executive is comparable to that given to the Attorney General under SORNA. Both the Executive and Attorney General are free to decide at any moment when a group or individual is or is not subject to the requirements of their respective Acts.[91]

2. The Executive Authority to Determine the Geographic Scope of the AUMF.

Congress gave no guidance in the AUMF to the Executive as to the geographical boundaries of the Act’s authority.[92] The AUMF lacks any limitations on individual military operations or systematic campaigns as a whole, giving the past three administrations a “blank check” to engage in armed conflict[93] in at least eighteen countries, including Cuba and the Philippines—countries doubtfully connected to the September 11 attacks.[94]

Similar to the power to determine who is covered by the AUMF, the authority to unilaterally determine where the AUMF applies goes well beyond filling in the details of the statute. Congress left the question of geographic applicability entirely to the Executive, with no guidance as to how to apply the geographic scope of its authority. This power could not be further from being “of less interest.”[95] Similar to the Attorney General’s authority to determine which registration requirements apply to which pre-Act offenders in Gundy,[96] here, too, has Congress delegated all policy-making powers regarding the scope of the Act’s coverage to the Executive in matters that cannot constitute mere details.

3. The Executive Authority to Determine the Temporal Scope of the AUMF.

While the AUMF’s applicability to anyone directly involved in the September 11 attacks is uncontested, the authorization itself makes no reference to time.[97] As this Comment argues, Congress unlawfully delegated policy decisions to the Attorney General in Gundy, here too Congress punted the question of what requisite temporal nexus a nation, organization, or person must possess in relation to the September 11 attacks to the Executive without any clear guidelines.[98]

One would think that when all perpetrators and aiders of the September 11 attacks have been neutralized, the Executive would have to acknowledge that their authorization for the use of military force has terminated—as no nation, organization, or person is left who could “satisfy the nexus” to September 11.[99] In a speech at the Oxford Union, Pentagon General Counsel Jeh Johnson stated:

I do believe that on the present course, there will come a tipping point[—]a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.

At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible . . . .[100]

This was not how the government perceived its authority after neutralizing al Qaeda and the Taliban.[101] Full-fledged military campaigns directed at Islamic-extremist terrorist groups, which are part of an “ever-growing daisy-chain of enemies,”[102] remain steady in multiple countries.[103] After the effective defeat of al Qaeda and the Taliban, the enemy target of the AUMF has drastically changed in leadership, affiliation, mission, and geographical location since the Act’s enactment nearly 20 years ago.[104] Using the guise of the AUMF to authorize the use of military force against splintered affiliates in far-away locations unmentioned by the AUMF (for example, in Somalia and Yemen) has become a third way in which the Executive has exercised lawmaking powers in excess of filling in the details of the AUMF. Without a sunset provision, the AUMF allows the Executive to unilaterally expand the scope of the Act to targets never intended or foreseen by Congress.[105] Following the approach Justice Gorsuch laid out in the dissent of Gundy, Congress provided no guidance to the Executive as to how or where it may exercise its powers in enforcing the AUMF, a strong violation of the first principle of the traditional approach to the nondelegation doctrine.

B. The AUMF Fails to Provide a Sufficient Standard for Executive Fact-Finding

An analysis of the second consideration of the traditional approach to the nondelegation doctrine follows similarly to what the dissent laid out in Gundy. Like SORNA, the AUMF grants the Executive the authority to be the fact-finder,[106] but does so by granting “unfettered discretion” in deciding when the statute is applied.[107] Such excessive delegation of legislative power could be challenged as a violation of the nondelegation doctrine under a Gundy-dissent reading of the doctrine.

1. Lack of Factual Predicate for Meaningful Target Entity Identification.

In section 2 of the AUMF, Congress grants the President alone the authority to determine which “nations, organizations, or persons” contributed to the September 11 attacks.[108] Congress sets forth no factual predicate that the Executive must consider before engaging in military force with an identified target of the AUMF,[109] an element that Justice Gorsuch’s dissent in Gundy saw as a critical factor in determining whether executive discretion violated the nondelegation doctrine.[110] This has allowed presidential administrations to decide what conditions trigger enforcement of the Act, hand-selecting targets and roping in new countries year after year under the ubiquitous umbrella of the AUMF.

2. Absence of Threshold Question for Determining Nexus to September 11.

Moreover, there is no threshold question that the Executive must satisfy to make the determination that a target “planned, authorized, committed, or aided . . . or harbored such organizations or persons” in connection to the terrorist attacks that occurred on September 11.[111]

The AUMF requires no factual basis for the chosen geographical location of the operation or even a level of suspicion that an entity may be a target under the AUMF.[112] Congress provides no criteria for determining such questions or determining how close the nexus must be between the target and September 11,[113] leaving the Executive essentially with the powers to create its own policies for deciding who, when, and where the AUMF applies. The unprecedented level of discretion has allowed three presidential administrations to unilaterally expand the scope of the AUMF with no opportunity for congressional debate or vote on its application.[114] Congress’s failure to provide sufficiently definite and precise standards for identifying targets and their connection with September 11 leaves the fact-finding consideration of the Gundy dissent’s nondelegation doctrine severely undersatisfied.

3. Absence of Reporting Requirements.

In the absence of sufficiently definite and precise standards as discussed above, if Congress wanted to ensure the Executive was enforcing the statute in accordance with Congress’s purpose and intent, it should have included a mandatory reporting requirement in the AUMF. The statute lacks any mandate that the Executive inform Congress of its planned or initiated military efforts; much less any requirement to report the number of civilian and military personnel casualties. [115] Without such reporting, Congress has little in the way of compelling the Executive to disclose to Congress or the American public the targets, location, and progress of its missions; information that would be pertinent to ensuring that the Executive is using a sound fact-finding process to make use of force decisions. This has allowed the Executive to make rash decisions to use military force without justifying its course of action to Congress, subverting Congress’s ability to fulfill its constitutional duty of oversight[116] and to ensure accountability and compliance with domestic and international laws.[117]

C. The AUMF Delegates More than Nonlegislative Authority

1. Legislative and Judicial Deference to Executive War Powers.

A judicial challenge to the AUMF under the Gundy dissent’s nondelegation doctrine would face the most struggle passing muster under the third traditional consideration—Congress’s power to delegate nonlegislative authority.

Congress may confer broader discretion to the Executive in matters which congressional and executive authority operate in tandem—specifically, in the context of national security.[118] Notwithstanding overlapping authority in the realm of national security, broad grants of authority to the Executive are not per se constitutional because of the nature of the matter—Congress may not delegate power to the Executive that are specifically reserved to Congress.[119] While the Court tends to defer issues of war powers to the political branches, the Court has not been afraid to exercise its power of judicial review where the outer limits of the President’s unilateral war powers were at stake.[120]

2. A More Stringent Review of Legislative Delegation.

The dissent in Gundy took greatest issue with the loose and meaningless check on separation of powers the current nondelegation doctrine inquiry provides.[121] However, under the current approach to the doctrine, the Court still asks whether Congress has provided the Executive with an intelligible principle when Congress authorizes the Executive to exercise her Commander-in-Chief powers in matters of national security.[122] If the current approach to the nondelegation doctrine is as lenient and un-rigorous as the Gundy dissent suggests, surely the dissenters of Gundy would show an even greater concern for ensuring the AUMF contained some guiding instruction for how the Executive is to carry out Congress’s authorization. Without such guiding instructions, Congress is at risk of delegating to the Executive a license to engage in policymaking, a power exclusively reserved for the Legislative Branch.[123]

A judicial challenge to the AUMF under a new reading of the nondelegation doctrine could cause the Court to reevaluate the balance of power between Congress and the Executive in the Act, which has been employed as a blank check to engage in military force and armed conflict around the globe.[124] By boxing out the Legislative Branch from policy decision-making, the AUMF has been used to accomplish many executive agendas other than those set out by Congress—frustrating the very separation of powers that the legislation was designed to protect.

Nevertheless, separation of powers is a delicate and difficult inquiry.[125] The Court rarely intervenes in disputes of national security and grants great deference to the Executive due to the longstanding doctrinal belief that the Executive can act more decisively in times of crisis and the courts lack the expertise to adjudicate issues dedicated to the political branches.[126]

VI. Conclusion

The AUMF has been used to justify use of military force against the Islamic State across the world almost twenty years after the attacks of September 11. The Executive has exercised practically unilateral authority to do so for years, and Congress has had little in the way of preventing the expansion of this power. While most AUMF scholarship has focused on ways to amend, repeal, or replace the AUMF, this Comment has suggested that AUMF reform could come from a reinterpretation of the longstanding doctrine of nondelegation.

Though a judicial challenge to the AUMF may be defeated under the third consideration of the new nondelegation doctrine, the significance of the Gundy dissent is not its ability to repeal the AUMF but its ability to provide a moment of review where the geographic, temporal, and target scope of the Act’s authority can be set. The fact that Gundy opens the door for a potential judicial challenge to the AUMF alone provides a significant pause in history where the Executive must defend and justify its previous and continual operations against the Islamic State by finding authority in the AUMF or establishing an independent authority in the President’s Article I powers. Soon, the Court could have the opportunity to reevaluate the statute’s value and efficacy in light of more recent conditions and potentially set in stone many of the questions that have remained unanswered about the authority and scope of the AUMF.

Caitlyn Grey Fiebrich

  1. See infra Section III.A.

  2. Infra Part II.

  3. Justice Elena Kagan, writing the plurality opinion, was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Gundy v. United States, 139 S. Ct. 2116, 2121 (2019) (plurality opinion). Justice Neil Gorsuch led the dissent alongside Chief Justice John Roberts and Justice Clarence Thomas. Id. at 2131 (Gorsuch, J., dissenting). Justice Samuel Alito concurred with the plurality’s judgment and most significantly, Justice Brett Kavanaugh did not take part in the decision. Id. at 2130 (Alito, J., concurring).

  4. See id. at 2131, 2139–40 (Gorsuch, J., dissenting).

  5. Infra Part III.

  6. Mary Kelly, When the U.S. Military Strikes, White House Points to a 2001 Measure, NPR (Sept. 6, 2016, 4:30 PM), https://www.npr.org/sections/parallels/2016/09/06/492857888/when-the-u-s-miltarystrikes-white-house-points-to-a-2001-measure [https://perma.cc/8YSJ-3PY4]; see also Jessica Michek, What the AUMF Is and Why You Should Care, Bipartisan Pol’y Ctr. (Apr. 18, 2018), https://bipartisanpolicy.org/blog/what-the-aumf-is-and-why-you-should-care-2018/ [https://perma.cc/3UQK-E5U4]; Rita Siemion, The 9/11 War Authorization and Iran: An Important Lesson for Congress, Hum. Rts. First (July 1, 2019), https://www.humanrightsfirst.org/blog/911-war-authorization-and-iran-important-lesson-congress [https://perma.cc/3CUZ-8MGB] (“When Congress passed the 2001 AUMF three days after the September 11th terrorist attacks, it intended to provide narrow authority to then-President Bush to use military force against . . . al-Qaeda, as well as . . . the Afghan Taliban.”).

  7. Infra Part V.

  8. See Gundy, 139 S. Ct. at 2121.

  9. Id.

  10. 34 U.S.C. § 20901.

  11. Gundy, 139 S. Ct. at 2122 (quoting 34 U.S.C. § 20913).

  12. Id.

  13. Id.

  14. Id.

  15. Id. at 2123 (quoting J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)).

  16. Id. at 2139 (Gorsuch, J., dissenting).

  17. Prior traditional teachings of the intelligible principle test focused on whether Congress has left the Executive the responsibility to ascertain the existence of facts and to fill up the details of a provision. Id.

  18. Id. at 2123 (plurality opinion).

  19. Id. at 2123–24.

  20. Id. at 2124–25.

  21. Id. at 2125, 2128.

  22. Id. at 2126–27.

  23. Id. at 2127.

  24. Id. at 2129–30.

  25. Id. at 2130–31 (Alito, J., concurring).

  26. Id. at 2131.

  27. Id. at 2131–39 (Gorsuch, J., dissenting); see also Kathryn Kovacs, Did the Dissent in Gundy v. United States Open up a Can of Worms?, Am. Const. Soc’y (June 24, 2019), https://www.acslaw.org/expertforum/did-the-dissent-in-gundy-v-united-states-open-up-a-can-of-worms/ [https://perma.cc/7JZ5-3S3U]. Congress cannot delegate “strictly and exclusively legislative” powers to any other branch. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825).

  28. Gundy, 139 S. Ct. at 2139–40 (Gorsuch, J., dissenting). “The test has become so ephemeral and elastic as to lose its meaning.” David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 Mich. L. Rev. 1223, 1231 (1985).

  29. Gundy, 139 S. Ct. at 2139–40 (Gorsuch, J., dissenting).

  30. Wayman, 23 U.S. (10 Wheat.) at 43.

  31. Id. at 43.

  32. Gundy, 139 S. Ct. at 2136 (Gorsuch, J. dissenting).

  33. Id.

  34. Id. at 2137.

  35. Id. at 2137, 2143–44; Wayman, 23 U.S. (10 Wheat.) at 42–43; Abraham D. Sofaer, Presidential Power and National Security, 37 Presidential Stud. Q. 101, 102 (2007); see also U.S. Const. art. I, § 8, cl. 18 (“The Congress shall have Power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States . . . .”).

  36. Gundy, 139 S. Ct. at 2143–45 (Gorsuch, J., dissenting).

  37. Id. at 2143.

  38. Jennifer L. Mascott, Gundy v. United States*: Reflections on the Court and the State of the Nondelegation Doctrine*, 26 Geo. Mason L. Rev. 1, 4–5 (2018); see also 34 U.S.C. § 20913(d) (listing the requirements for initial registration of sex offenders convicted prior to SORNA).

  39. Gundy, 139 S. Ct. at 2143 (Gorsuch, J., dissenting).

  40. Id. at 2141.

  41. See 34 U.S.C. § 20913(d).

  42. Id.

  43. Gundy, 139 S. Ct. at 2143 (Gorsuch, J., dissenting).

  44. Id.

  45. Id. at 2143–44.

  46. Id. at 2144.

  47. See Kovacs, supra note 27.

  48. Id.

  49. Andrew Nolan & Caitlain Devereaux Lewis, Cong. Rsch. Serv., R45293, Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court 146 (2018).

  50. Id. at 147.

  51. Kevin Cope & Joshua Fischman, It’s Hard to Find a Federal Judge More Conservative than Brett Kavanaugh, Wash. Post (Sept. 5, 2018, 4:00 AM), https://www.washingtonpost.com/news/monkey-cage/wp/2018/09/05/its-hard-to-find-a-federal-judge-more-conservative-than-brett-kavanaugh [https://perma.cc/J2NJ-YX9M]. However, the conservative bloc may not be all it is cracked up to be, as recently, Chief Justice Roberts joined the liberal bloc in favor of protecting the Deferred Action for Childhood Arrivals program and in favor of protecting sexual orientation and gender identity under the 1964 Civil Rights Act, along with Justice Gorsuch. J. Edward Moreno, Majority of Republicans, Democrats Support Supreme Court After DACA, LGBTQ Rights Rulings: Poll, Hill (June 26, 2020, 10:19 AM), https://thehill.com/homenews/news/504679-both-republicans-and-democrats-approve-of-supreme-court-daca-lgbtq-rights [https://perma.cc/6BVV-NUP8].

  52. Kovacs, supra note 27.

  53. See Gundy v. United States, 139 S. Ct. 2116, 2139–40 (2019) (Gorsuch, J., dissenting).

  54. Hum. Rts. First, Drafting an Effective Authorization for Use of Military Force, Issue Brief: Drafting an Effective AUMF 1 (2018) [hereinafter Drafting an Effective AUMF], https://www.humanrightsfirst.org/sites/default/files/AUMF-Issue-Brief.pdf [https://perma.cc/6ZG6-GZD5].

  55. Matthew C. Weed, Cong. Rsch. Serv., R42699, The War Powers Resolution: Concepts and Practice 38 (2019).

  56. Authorization for Use of Military Force of 2001, Pub. L. No. 107-40, § 2(a), 115 Stat. 224. Similar to that described in SORNA, “The breadth of the authority Congress granted . . . in these few words can only be described as vast.” Gundy, 139 S. Ct. at 2132 (Gorsuch, J., dissenting).

  57. See 115 Stat. at 224.

  58. Kelsey Padgett & Matthew Kielty, Radio Lab: 60 Words, WNYC Studios (Jan. 7, 2020), https://www.wnycstudios.org/podcasts/radiolab/episodes/60-words [https://perma.cc/36SN-T5BQ]. “The thing we have to keep in mind when we’re talking about this, is all of this was done within 72 hours after the worst terrorist attack in United States history.” Id.

  59. See § 2(a), 115 Stat. at 224.

  60. See id.

  61. See id.

  62. See id.

  63. Padgett & Kielty, supra note 58.

  64. Bush: Bin Laden 'Prime Suspect, CNN (Sept. 17, 2001, 8:01 PM), https://www.cnn.com/2001/US/09/17/bush.powell.terrorism/ [https://perma.cc/497F-54CQ]. Bin Laden later accepted responsibility for the attacks in a video recording in 2004. See 10/29/04: Osama Bin Laden Video Message, ABC News (Oct. 29, 2004), https://abcnews.go.com/Archives/video/oct-29-2004-osama-bin-laden-video-message-11700438 [https://perma.cc/87BZ-4BBJ].

  65. Nat’l Comm’n on Terrorist Attacks Upon the U.S., The 9/11 Commission Report 3–4 (2004).

  66. Jayshree Bajoria & Greg Bruno, Al-Qaeda (a.k.a. al-Qaida, al-Qa’ida): A Profile of the International Terrorist Network That the United States Has Singled out As the Most Serious Threat to U.S. Security, Council on Foreign Rels., https://www.cfr.org/backgrounder/al-qaeda-aka-al-qaida-al-qaida [https://perma.cc/NK4Y-ES5R] (June 6, 2012).

  67. The Global Reach of Al-Qaeda: Hearing Before the Subcomm. on Int’l Operations and Terrorism, Comm. on Foreign Rels., 107th Cong. 3 (2001) [hereinafter Hearing Before the Subcomm. on Int’l Operations and Terrorism] (statement of J.T. Caruso, Acting Assistant Director, Counterterrorism Division, FBI). Al Qaeda vehemently opposed the United States’ participation in the Gulf War and drove forces out of Saudi Arabia by violence in the years following 1991. Id. at 4. Al Qaeda additionally led deadly attacks against the United States during Operation Restore Hope, a United States-led coalition to create peace and stability in civil war-torn Somalia through the years 1992 to 1993. Id. at 4–5. In August of 1998, Al Qaeda simultaneously bombed U.S. embassies in Kenya and Tanzania, resulting in the deaths of 224 people. 1998 US Embassies in Africa Bombings Fast Facts, CNN, https://www.cnn.com/2013/10/06/world/africa/africa-embassy-bombings-fast-facts/index.html [https://perma.cc/V7US-5QBC] (Aug. 3, 2020, 11:01 AM).

  68. Tricia Bacon, Deadly Cooperation: The Shifting Ties Between Al-Qaeda and the Taliban, War on Rocks (Sept. 11, 2018), https://warontherocks.com/2018/09/deadly-cooperation-the-shifting-ties-between-al-qaeda-and-the-taliban/ [https://perma.cc/YT7R-LYN3].

  69. Taliban Fast Facts, CNN, https://www.cnn.com/2013/09/20/world/taliban-fast-facts/index.html [https://perma.cc/3QTC-XM3M] (Aug. 13, 2020, 9:41 AM).

  70. Bajoria & Bruno, supra note 66; Bruce Riedel, Al-Qaeda Today, 18 Years After 9/11, Lawfare (Sept. 11, 2019, 8:37 AM), https://www.lawfareblog.com/al-qaeda-today-18-years-after-911 [https://perma.cc/2JXU-VZNH].

  71. Bacon, supra note 68. United States forces quickly invaded Afghanistan and overthrew the Taliban regime. Id.

  72. Stephen W. Preston, Gen. Couns., Dep’t of Def., The Legal Framework for the United States’ Use of Military Force Since 9/11 (Apr. 10, 2015), http://www.defense.gov/News/Speeches/Speech-View/Article/606662 [https://perma.cc/48MQ-GY7T].

  73. Id.

  74. Daniel L. Byman, Comparing Al Qaeda and ISIS: Different Goals, Different Targets, Brookings (Apr. 29, 2015), https://www.brookings.edu/testimonies/comparing-al-qaeda-and-isis-different-goals-different-targets/ [https://perma.cc/WM98-LP6G].

  75. Id.

  76. Megan Specia, The Evolution of ISIS: From Rogue State to Stateless Ideology, N.Y. Times (Mar. 20, 2019), https://www.nytimes.com/2019/03/20/world/middleeast/isis-history-facts-islamic-state.html [https://perma.cc/3LE2-Y8GA].

  77. Id.

  78. When asked to address whether the AUMF applies to the Islamic State in a habeas petition, the Supreme Court sidestepped the question, instead facilitating a compromise between the government and Doe. Robert Chesney, Doe v. Mattis Ends with a Transfer and a Cancelled Passport: Lessons Learned, Lawfare (Oct. 29, 2018. 11:14 AM), https://www.lawfareblog.com/doe-v-mattis-ends-transfer-and-cancelled-passport-lessons-learned [https://perma.cc/HVW4-ULL3]; Doe v. Mattis – Challenge to Detention of American by U.S. Military Abroad, ACLU, https://www.aclu.org/cases/doe-v-mattis-challenge-detention-american-us-military-abroad [https://perma.cc/GMF8-EFQQ] (Oct. 29, 2018).

  79. See Gundy v. United States, 139 S. Ct. 2116, 2132 (2019) (Gorsuch, J., dissenting).

  80. Authorization for Use of Military Force of 2001, Pub L. No. 107-40, § 2(a), 115 Stat. 224.

  81. Bajoria & Bruno, supra note 66; see also Hearing Before the Subcomm. on Int’l Operations and Terrorism, supra note 67.

  82. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004).

  83. See § 2(a), 115 Stat. at 224. “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned . . . .” Id. (emphasis added).

  84. See Curtis A. Bradley & Jack L. Goldsmith, Obama’s AUMF Legacy, 110 Am. J. Int’l L. 628, 633 (2016).

  85. Supra Section IV.D.

  86. § 2(a), 115 Stat. at 224.

  87. Some would argue that the Executive has its own authority to engage in military force through the President’s Commander-in-Chief power. While this is a possible reading of Article I of the Constitution, the War Powers Resolution seems to confine the President’s unilateral authority to engage in conflict to instances of self-defense. See 50 U.S.C. § 1541(c).

  88. See id.; Christina Sterbenz, This 60-Word Sentence Started the ‘War on Terror’ — and Much More, Bus. Insider (Apr. 30, 2014, 4:50 PM), https://www.businessinsider.com/this-60-word-sentence-started-the-war-on-terror-2014-4 [https://perma.cc/4NP2-C3ZX].

  89. Memorandum for the Secretary of the Navy from Paul Wolfowitz, Deputy Sec’y of Def. on the Order Establishing Combatant Status Review Tribunal (July 7, 2004), https://en.m.wikisource.org/wiki/Order_Establishing_Combatant_Status_Review_Tribunal [https://perma.cc/28E4-7WSG]. This notion of associated forces does not appear in the text of the AUMF. See § 2(a), 115 Stat. at 224.

  90. See Sterbenz, supra note 88.

  91. See Gundy v. United States, 139 S. Ct. 2116, 2143 (2019) (Gorsuch, J., dissenting). The AUMF presents a similar problem as the statute in Panama Refining Co. v. Ryan, where “the Court struck down a statute that authorized the President to decide whether and how to prohibit the . . . transportation of ‘hot oil’” because Congress declared no policy, established no standard, and did not require the Executive to establish the existence of certain facts to trigger the statute or ask the Executive to fill the details of a sufficiently defined policy. Id. at 2138 (quoting Panama Refining Co. v. Ryan, 293 U.S. 388, 426 (1935)).

  92. See § 2(a), 115 Stat. at 224.

  93. No One Should Have a Blank Check for War. Especially Not Donald Trump., Indivisible [hereinafter Blank Check], https://indivisible.org/resource/no-one-should-have-blank-check-war-especially-not-donald-trump [https://perma.cc/V6PB-MKFU] (last visited June 12, 2020). Representative Barbara Lee of California was the only member of the house to vote against the AUMF in 2001. Rep. Barbara Lee, No More Blank Checks for War, Nation (June 20, 2018), https://www.thenation.com/article/no-more-blank-checks-for-war/ [https://perma.cc/CX98-6S9H]. When discussing her desire to repeal the AUMF, she stated, “That legislation—known as an Authorization for Use of Military Force (AUMF)—was a blank check for any president to wage war anywhere in the world, in perpetuity, without congressional input.” Id.

  94. Lee, supra note 93; Matthew Weed, Cong. Rsch. Serv., The 2001 Authorization for Use of Military Force: Background in Brief 2 (2013); Advance Policy Questions from S. Armed Servs. Comm. for Gen. Mark A. Milley, U.S. Army Nominee for Appointment to be Chairman of the Joint Chiefs of Staff 18 (July 11, 2019), https://www.armed-services.senate.gov/imo/media/doc/Milley_APQs_07-11-19.pdf [https://perma.cc/7CWB-4SQQ].

  95. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825).

  96. Gundy, 139 S. Ct. at 2143 (Gorsuch, J., dissenting).

  97. See § 2(a), 115 Stat. at 224.

  98. See id.; Gundy, 139 S. Ct. at 2143.

  99. Graham Cronogue, Note, A New AUMF: Defining Combatants in the War on Terror, 22 Duke J. Compar. & Int’l L. 377, 385 (2012). In Hamdi v. Rumsfeld, the Supreme Court affirmed this policy when it ruled that detention of enemy combatants “may last no longer than active hostilities” with that enemy. Hamdi v. Rumsfeld, 542 U.S. 507, 520 (2004).

  100. Jeh Johnson, Gen. Couns., Dep’t of Def., Speech at the Oxford Union: The Conflict Against Al Qaeda and Its Affiliates: How Will It End? 8–9 (Nov. 30, 2012), https://2009-2017.state.gov/documents/organization/211954.pdf [https://perma.cc/4RHD-DK43] (first emphasis added). Anything after the destruction of al Qaeda is not authorized under the AUMF and is unlawful unilateral military action.

  101. It is largely accepted that the United States defeated al Qaeda with the death of bin Laden in 2011. Bajoria & Bruno, supra note 66. While the War in Afghanistan continues, the Taliban retain a mere 4% of control in Afghanistan as of January 2018. Shoaib Sharifi & Louise Adamou, Taliban Threaten 70% of Afghanistan, BBC Finds, BBC News (Jan. 31, 2018) https://www.bbc.com/news/world-asia-42863116 [https://perma.cc/AJ7R-Y6FB].

  102. Rita Siemion & Benjamin Haas, How Trump Could Really End "Endless Wars," Just Sec. (Nov. 1, 2019), https://www.justsecurity.org/66784/how-trump-could-really-end-endless-wars/ [https://perma.cc/XH4B-P353].

    The extension of the 2001 AUMF to cover the Islamic State raises the question of whether the use of force against Salafi-jihadi militant groups in North Africa, the Middle East and Southeast Asia that have pledged their allegiance to the Islamic State may also fall within the scope of authorized presidential action.

    Harleen Gambhir, The Next Wave of AUMF Expansion? The Islamic State’s Global Affiliates, Lawfare (Nov. 13, 2017, 9:00 AM), https://www.lawfareblog.com/next-wave-aumf-expansion-islamic-states-global-affiliates [https://perma.cc/5SPH-AV7X].

  103. See supra Section V.A.2. Military operations continue in the Middle East and Northern Africa against persons and organizations who did not perpetrate or harbor perpetrators of September 11, namely the rise of the Islamic State. Drafting an Effective AUMF, supra note 54, at 1.

  104. Supra Section V.A.1.

  105. Drafting an Effective AUMF, supra note 54, at 1.

  106. “[T]he President is authorized to use all necessary and appropriate force against those . . . he determines planned, authorized, committed, or aided” the 9/11 attacks. Authorization for Use of Military Force of 2001, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (emphasis added).

  107. Gundy v. United States, 139 S. Ct. 2116, 2143 (2019) (Gorsuch, J., dissenting).

  108. § 2(a), 115 Stat. at 224.

  109. Id.

  110. In Touby v. United States, the Court considered a provision of the Controlled Substances Act . . . . Congress required the Attorney General, before [adding a substance to the list of prohibited drugs], to consider the drug’s “history and current pattern of abuse,” the “scope, duration, and significance of [that] abuse,” and “[w]hat, if any, risk there is to the public health.”

    Gundy, 139 S. Ct. at 2141 (Gorsuch, J., dissenting) (quoting Touby v. United States, 500 U.S. 160, 166 (1991)).

  111. § 2(a), 115 Stat. at 224. The concept of requiring the President to sufficiently demonstrate factual predicate when designating a new person or entity as connected to the September 11 attacks was introduced in an AUMF proposal drafted by Representative Adam Schiff of California. Comparison Chart of ISIS AUMF Proposals: October 2017, Hum. Rts. First (Oct. 2017), https://www.humanrightsfirst.org/sites/default/files/ISIS-AUMF-Proposal-Comparison-Chart.pdf [https://perma.cc/6SNE-Z5US].

  112. See § 2(a), 115 Stat. at 224.

  113. Id.

  114. Blank Check, supra note 93. This level of discretion is problematic because involving voices from more than one person or one branch leads to better policymaking decisions.

  115. Drafting an Effective AUMF, supra note 54, at 9.

  116. Id.

  117. Id. at 10; see also Gundy v. United States, 139 S. Ct. 2116, 2134 (2019) (Gorsuch, J., dissenting).

  118. Eric A. Posner, Deference to the Executive in the United States After September 11: Congress, the Courts, and the Office of Legal Counsel, 35 Harv. J.L. & Pub. Pol’y 213, 214 (2012). The deference thesis reads that Congress, the courts, and other government institutions should defer to the Executive’s decision-making policies during national security emergencies. Id.

  119. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825); see also U.S. Const. art. I, § 8.

  120. See Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004) (“[I]t does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here.”).

  121. See Gundy, 139 S. Ct. at 2131 (Gorsuch, J., dissenting).

  122. Schoenbrod, supra note 28, at 1227; see also Bowles v. Willingham, 321 U.S. 503, 515–16 (1944); Yankus v. United States, 321 U.S. 414, 424–25 (1944).

  123. See U.S. Const. art. I, § 8.

  124. Heather Brandon-Smith & Shoshana Abrams, End the Blank Check for War, Friends Comm. on Nat’l Legis., https://www.fcnl.org/updates/end-the-blank-check-for-war-1917 [https://perma.cc/L8SK-99K7] (last visited June 12, 2020).

  125. Gundy, 139 S. Ct. at 2135 (Gorsuch, J., dissenting) (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825)).

  126. Posner, supra note 118, at 216; Nicholas G. Green, Note, A “Blank Check”: Judicial Review and the War Powers in Hamdi v. Rumsfeld, 56 S.C. L. Rev. 581, 592 (2005).