Is the Iraq War Soon To Be Unlawful?: Show Me the Money

In the Washington Post yesterday, Bruce Ackerman and Oona Hathaway argued , not without some force, that when the current U.N. Iraq Resolution expires on December 31, there will no longer be any factual predicate for the president’s use of military force in Iraq pursuant to the 2002 statute that authorized such force.

Although the Bush administration does not concede that congressional authorization will expire on New Year’s Eve, it understands the strength of the argument, and therefore it is planning to establish new authorization—not by way of a treaty or law approved by Congress, but instead through a “sole executive agreement” with Iraq that would commit the U.S. to provide military support there for the foreseeable future.

As I understand them, Bruce and Oona argue that such a unilateral presidential agreement would be unlawful for one or both of two reasons: i) the President does not have independent power to enter into such an agreement because he would not have the constitutional authority to unilaterally introduce troops into present-day Iraq in the first place; and/or ii) such an agreement would violate implied statutory limitations —”conditions”—placed on the president in the 2002 law.

I tend to think although the recent Medellin decision gives some support to the first argument against the sole executive agreement, the second of these arguments (that the agreement would transgress limits implicit in the 2002 statute) is the stronger one. Nevertheless, both arguments are certainly contestable and, more to the point, President Bush will in fact reject both arguments, will sign the agreement with Iraq, and will keep troops in Iraq in 2009, without specific congressional authorization. As will the next president, come January 20, 2009.

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