Interpreting Force Authorization

Abstract

This Article presents a theory of authorizations for the use of military force (AUMFs) that reconciles separation of power failures in the current interpretive model. Existing doctrine applies the same text-driven models of statutory interpretation to AUMFs that are utilized with all other legal instruments. However, the conditions at birth, objectives, and expected impacts underlying military force authorizations differ dramatically from typical legislation. AUMFs are focused but temporary corrective interventions intended to change the underlying facts that prompted their passage. This Article examines historical practice and utilizes institutionalist principles to develop a theory of AUMF decay that eschews text in favor of time. Consistent with armed conflict, functional needs, and constitutional norms, AUMF decay offers a model that harnesses the institutional advantages and interplay embedded in separation of powers regime. Properly, AUMF interpretation recognizes their peculiar role and lifespan as one that explodes into the legal landscape with supernova intensity and potency that, regardless of text, is just as surely followed by an accelerating decay that ultimately diminishes to complete inoperability.

Keywords: AUMF, separation of powers, military, statutory interpretation, use of force