The War Powers Resolution, ISIS, and President Obama

 

Does President Obama need to ask Congress for a declaration of war against ISIS? That question has been much debated in recent weeks, with figures like Yale Law’s David Ackerman criticizing both the President and Congress for failing to step up to the plate. In my most recent column for Defining Ideas at the Hoover Institution, I argue that the general thrust of this line of criticism is salutary, but that’s it a mistake to apply it too tightly to the ISIS situation. From the piece:

In principle, I am pleased to see the powerful chorus of criticism against the President’s power grab. Yet I am also relieved that the [War Powers Resolution] will fail to achieve its stated goal of forcing Congress to act or getting the courts involved if it does not.

Further:

On the positive side, there is a desperate need to prevent any president from initiating major conflicts without a congressional go-ahead. George W. Bush was right to seek authorization from Congress to initiate the attacks in Iraq and Afghanistan given that the escalation started from a zero baseline. The clear break between the status quo ante of non-intervention and some future major conflict made it sensible and possible for Congress to act.

The situation today is, alas, much messier. It is very hard to distinguish those actions in Syria that are not spillovers from the Iraq War. It is all too easy, unfortunately, to spend lots of time explaining the need for congressional action, but it is far harder to justify a nation sitting idly by while mass slaughter takes place overseas that poses a serious threat to the United States and its allies. It is equally difficult to expect any president, including one as indecisive as Barack Obama, to negotiate delicate agreements with reluctant friends and possible enemies, unless he can make good on his deals, which could not happen if all potential alliances were subject to congressional approval sometime down the road. Nor does it make sense to block moves against ISIS because it has broken with al-Qaeda. It is all too possible that the two organizations may, or perhaps have, established some accommodation that might bring the AUMF back into play.

You can read the piece in full to appreciate the full sweep of the argument.

What about you? Do you think Congress should be required to explicitly authorize the military efforts against ISIS?

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  1. Tom Meyer Member
    Tom Meyer
    @tommeyer

    Richard Epstein: George W. Bush was right to seek authorization from Congress to initiate the attacks in Iraq and Afghanistan given that the escalation started from a zero baseline.

    With respect, I wouldn’t characterize it that way. We had over 6,000 coalition airmen, etc. enforcing the No Fly Zones and had essentially been monitoring a ceasefire for over a decade.

    Moreover — and I’m being even more political and less legal here — Obama campaigned in 2012 on having ended the Iraq War. Well, if it ended, then this must be a new conflict.

    • #1
  2. user_512412 Inactive
    user_512412
    @RichardFinlay

    Obama campaigned in 2012 on having ended the Iraq War.

    I believe it is now therefore Obama’s official position that he was lying.

    • #2
  3. liberal jim Inactive
    liberal jim
    @liberaljim

    “Authorization to use force”  Is this something less than war that the President acting as CAC engages in or is it war?  If it is war why not a declaration?  If it is something other than war that he needs authorization for how can he be acting as CAC?  The CAC does not need authorization to wage war, but cannot declare war.  Either declare war or don’t declare war.  Once war is declared the President cannot be told how to wage it.  The only thing Congress can then do is withhold funds.

    This idea of authorizations makes no Constitutional sense.  It is nothing more than a mealy-mouthed method for politicians to escape accountability.

    • #3
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