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Morgan Baker

Regulations or Delegations?: How Congress Delegated Its War Powers to the President Through Discretionary AUMFs.


Supervisors:

Professor Iwan Morgan and Dr Tony McCulloch

PhD Completed in 2020

My thesis examines the expansion of U.S. presidential war power, under the lens of congressionally enacted authorizations for use of military force (AUMFs), since the founding. Whereas most academic scholarship has been dedicated to unauthorized presidential war making, my research analyses the impact of AUMFs and their potential to delegate constitutional powers to the President through vague language, highly discretionary provisions, and the non-inclusion of specific regulatory measures.

Two relevant analytical legal doctrines apply: void-for-vagueness and legislative non-delegation. No scholar has previously applied these two legal doctrines to scrutinize AUMFs and their potential to unconstitutionally empower the President. I draw from historical precedents, specifically U.S. Supreme Court cases concerning executive power, separation-of-powers, and war powers. These cases are critical in understanding the difference between general versus limited wars. By applying legal doctrines and judicial precedents, I argue that AUMFs were originally intended to regulate the President as commander-in-chief. Yet, historically enacted AUMFs have violated these two legal doctrines, unconstitutionally delegating broad war powers to the President. Consequently, presidents execute AUMFs in a highly arbitrary fashion, as the vague language provides discretion to wage virtually unrestricted warfare.

My thesis is structured chronologically, with case studies that investigate specific conflict AUMFs. The historical chapters cover the period from the U.S. founding to the Korean War (1789-1950). The case studies include: the 1955 Formosa Resolution and 1957 Middle East Resolution, 1964 Tonkin Gulf Resolution, 1991 Persian Gulf War AUMF, and the 2001 AUMF. My research draws from archival documents and personal interviews conducted with U.S. judges, law professors, historians, and other scholars of U.S. politics.