Congress Just Voted To Fund The War Against ISIS. Did They Authorize It, Too?

A prominent legal voice says yes.

WASHINGTON -- Congress has avoided authorizing the war against the self-described Islamic State for nearly a year and a half, but it had no problem voting Friday to spend billions more on it.

Wait -- did lawmakers also just vote to authorize it?

Jack Goldsmith, a Harvard Law School professor who previously served in the Justice Department's Office of Legal Counsel, says that because lawmakers voted for a $1.1 trillion government spending bill that clearly appropriates money for the fight against the Islamic State, they also voted to approve the war itself.

Goldsmith explained his reasoning in a Thursday post on the legal blog Lawfare: A 2000 Justice Department opinion states that Congress can "authorize hostilities through its use of the appropriations power" if a spending bill is directly focused on a specific military action. The year-end spending bill that lawmakers passed Friday includes $58.6 billion for Overseas Contingency Operations for military activities. House Appropriations Committee chairman Hal Rogers (R-Ky.) has specifically said some of those funds will be used to "combat the real-world threat of the Islamic State of Iraq and the Levant (ISIL)."

That means that, at least for the period of time covered by the funding bill -- it goes through Sept. 30, 2016 -- lawmakers just voted to authorize the war against the Islamic State, Goldsmith said.

"Of course, Congress is not calling its funding an authorization for the use of force against ISIL, much less debating the authorization," he said. "But make no mistake: The funding to continue the war against ISIL is an authorization of force against ISIL, albeit a quiet one, designed not to attract attention."

The Huffington Post asked lawmakers if they considered their vote to fund the war the same as a vote to authorize it. They weren't very receptive.

"No. Funding is not a substitution for authorization," said Sen. Chris Murphy (D-Conn.). "The Constitution is pretty clear in its terms that our responsibility is to declare war, not to fund war."

"I think it's maybe a trick question," said Rep. Lamar Smith (R-Texas), chairman of the House Judiciary Committee. "I don't know the answer to it. Technically, it's not a separate vote to authorize the war, but again, is that a distinction without a difference? Or not? I'm not sure."

Murphy and Smith are both lawyers, so HuffPost thought they might have special legal insights. They did not.

"I'm a real estate lawyer," Murphy said.

"That doesn't mean I'm familiar with authorizing wars," Smith said.

Sen. Chris Murphy (D-Conn.) is an advocate for passing a new war authorization for the fight against Islamic State terro
Sen. Chris Murphy (D-Conn.) is an advocate for passing a new war authorization for the fight against Islamic State terrorists. But he doesn't think voting to fund the war should be seen as a vote to authorize it.

If Goldsmith is right, his argument puts a whole new twist on Congress' failure to vote on a new Authorization for the Use of Military Force for the fight against the Islamic State, or ISIS.

Congress is in the bizarre predicament of debating the need to authorize a war that's been underway since August 2014. It has spent billions of dollars on it, and approved the deployment of a few thousand troops. It just skipped over the part where it's supposed to authorize the war first.

The dispute stems from President Barack Obama saying he already has the authority to take military action against the Islamic State without congressional sign-off because he's covered by a sweeping 2001 AUMF, which basically lets the president attack anyone, anywhere, if they're connected to the terrorists behind the Sept. 11 attacks. ISIS is an offshoot of al Qaeda, argues the administration, and the 2001 AUMF never expired.

Lawmakers in both parties disagree that Obama can use a 14-year-old AUMF for a fight against ISIS, which didn't even exist 14 years ago. The Constitution clearly states that Congress declares wars, not the president. Even Obama agrees that using an old war authorization for a new fight is not ideal, and sent lawmakers a draft AUMF proposal in February to get the ball rolling on a new one. But they couldn't agree on how to amend it, and congressional leaders haven't prioritized passing a new one. So the war rolls on without any real debate or vote on its parameters, duration or use of U.S. ground combat troops.

Still, most lawmakers voted to keep funding it in Friday's spending package. To date, the U.S. has spent more than $5.2 billion on military operations and led more than 8,900 air strikes. Some said it wasn't fair to treat their vote as a vote to authorize military operations since the war funding is wrapped up in a massive bill funding the entire government.

"You have a choice here. You can vote on on this and try to shut [war funding] down, but you'd be putting all of this in second place," said Rep. Stephen Lynch (D-Mass.), motioning around a room outside the House chamber. "So I think it's a matter of priorities."

"Look, people can interpret it any way you want. But we're voting to fund the entire government," said Rep. Tom Cole (R-Okla.). "I think we have to have a little more precision in the vote that that."

Sen. John McCain (R-Ariz.), chairman of the Senate Armed Services Committee, said lawmakers have a responsibility to keep paying for the war against the Islamic State, regardless of whether they take the time to vote on authorizing it.

"I mean, we have to. We have no choice. The United States has just been attacked," he said. "After 9/11, we funded immediately and then we authorized."

But it's not looking like Congress will hold a vote specifically on authorizing the war, at least not anytime soon. Senate Majority Leader Mitch McConnell (R-Ky.) has said he's not up for it. House Speaker Paul Ryan (R-Wis.) said it would probably be a good idea, but conceded it's a tricky path ahead and isn't sure how to navigate it.

Even the most vocal advocates for a new war authorization voted to keep funding the military campaign. Rep. Jim McGovern (D-Mass.) said he's not willing to shut down the government over the issue. But as lawmakers were bolting out of the Capitol on Friday for a month-long recess, he said he's disappointed in how easy it is for them to keep throwing money at a war they won't even stop to debate.

"It's cowardly," McGovern said. "It's not just the money. It's knowing that we have Americans that are being put in harm's way in dangerous situations, yet we can't find the time here to debate it. I just find that stunning."