Non-Delegation and Perpetual War

Set aside for a minute bizarre tea party concerns with the administrative state (a.k.a, “socialism”): agencies are here to stay. They’re valuable things, subject-matter experts with both the time and knowledge to solve problems well. But they’re not little legislatures. The Constitution vests Congress with the legislative power, and only Congress; for an agency to take even a quasi-legislative act, its power must derive from Congress’, typically through the explicit, and limited, delegation of authority.

For a delegation to be effective, Congress must tell the agency precisely what task it may accomplish. That any delegation of power requires such an “intelligible principle” is a bedrock rule of administrative law, dating to the dawn of the administrative state. The rule exists to prevent Congress from (essentially) delegating itself out of existence, an incentive legislators would otherwise face, especially on hot-button issues. To the extent that the nondelegation doctrine survives, it requires legislators to tell the recipient of delegated power generally what it wants done, and how to accomplish it. For example, it will not do for Congress to simply instruct the SEC to stabilize the capital markets; it must tell the SEC how it is to accomplish this goal.

There’s a way to look at the declaration of war as a similar administrative action. As we highlighted last week, the modern “declaration” takes the form of an “authorization for the use of military force,” which both checks the War Powers Act box, and permits, essentially, all military action the President may deem necessary to accomplish Congress’ chosen objective, subject only to external limits. Acting under an AUMF, the President “personif[ies] the federal sovereign,” and necessary military acts will only rarely be gainsaid.

Functionally, Congress delegates its warmaking power for the duration of the conflict, but the scope of the President’s delegated authority is always confined by the specific limits of Congress’ authorization. The President’s war powers are limited, in other words, by what we would call in the administrative context an intelligible principle: “win this war,” not, “make the world safe for America.”

All AUMFs in recent memory contain such a principle. The September 2011 AUMF comes the closest to a general grant of war power, but even there, the President could only take 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.

This is a finite grant — it outlines an achievable goal, and one we’re closer to achieving than ever. But the closer we get to achieving this narrow goal, the more it looks like just one part of a larger mission, one that verges on the impossible: the eradication of global terror.

By definition, such a war may never end, and it also may be one we’re obligated to fight. But perpetual war comes with serious practical problems — and to that we add a legal problem. I don’t see, at least as it stands, how Congress can authorize war against an unnamed, faceless, amorphous foe, without completely delegating away its constitutional duty (and responsibility) to declare war. Without an intelligible and limited principle, this delegation would (and probably should) be unconstitutional.

That’s not the end of the inquiry: if we need to fight such a war, we’ll figure out how to do it. All of the above means only that when we do, we’ll probably have to reinvent a good deal of our war powers framework. And that’s a process we’ll want to undertake carefully, with our eyes open to the risks.


  1. “By definition, such a war may never end… But perpetual war comes with serious practical problems.”

    I wish the government would apply this logic to the War on Drugs.

  2. Sort of a different thing, though. That’s a criminal deal, while your side constantly reminds us that terrorism is not.

  3. Still just as problematic – and the timespan has destroyed far more American lives than all of our wars put together.

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