On ISIL, Congress must act
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In this commentary, Chris Edelson of the American University School of Public Affairs says President Obama must seek congressional approval for strikes against the Islamic State.
President Obama does not have authority under U.S. law to order military strikes against ISIL, despite his assertion in last week’s public address that he “will not hesitate to take action against ISIL in Syria, as well as Iraq.”
The President is right to describe ISIL as a terrifying, dangerous, evil group. The problem, however, is that he lacks authority to justify the unilateral actions he is planning, which include “a systematic campaign of airstrikes against these terrorists.”
Any campaign against ISIL needs to be planned carefully. History shows us that fighting against admittedly terrible actors can lead to bad, though unintended, consequences. ISIL itself would not exist if the U.S. had not invaded Iraq in 2003 under false pretenses.
But even before we address this question—how to plan a fight against ISIL—we must confront the question of legitimacy.
Congress has the sole authority to declare war under the Constitution. The President possesses limited emergency power to unilaterally order military action when necessary for self-defense—for instance, to respond to a sudden attack against the U.S. when there is no time to consult Congress.
In all other cases, it is necessary for the President to obtain advance congressional authorization for military action. In 2007, then-candidate Obama acknowledged this, conceding that “[t]he President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”
As President, Obama has deviated from this principle.
Three years ago in Libya, the Obama administration claimed authority to unilaterally order military action outside the self-defense context so long as the President was acting in the national interest and military action did not rise to the level of war or “hostilities.”
Last month, President Obama claimed the authority to act unilaterally in ordering air strikes against ISIL forces in Iraq.
In last week’s speech, the President failed to make clear why he believes he has authority to order air strikes against ISIL in Syria. He did, however, make clear that he believes he can act now without specific authorization from Congress, saying that “I have the authority to address the threat from ISIL” and describing congressional support for his actions as “welcome” but presumably not necessary.
This is puzzling, and it is dangerous, in part because Obama’s successors might cite it as precedent for unrestrained action.
It is puzzling because President Obama did not take the opportunity to clearly explain why he believes he has authority to act. An unnamed “senior administration official” has suggested that the President’s authority stems from the 2001 AUMF, passed a few days after the 9/11 attacks, and authorizing the President “to use 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.”
The 2001 AUMF clearly provided authority for military action against al Qaeda and the Taliban. But citing the 2001 AUMF to apply to ISIL, a group that did not exist on Sept. 11, 2001 and is a rival of al-Qaeda is “quite a stretch,” as Wells Bennett observed. In other words, the 2001 AUMF is a mere fig leaf that fails to conceal the reality that President Obama is once again acting alone.
Some members of Congress have expressed concern about presidential overreach—but they generally have limited their criticisms to the domestic sphere.
Most notably, Speaker Boehner is organizing a lawsuit against President Obama, charging him with exceeding his constitutional authority by delaying implementation of the Affordable Care Act. That lawsuit is misconceived—the President has solid reasons for defending his unilateral actions in the domestic context.
If Speaker Boehner and other members of Congress are serious about confronting the problem of presidential overreach, now is their time to act. President Obama’s plan for military action in Syria is a real example of presidential overreach, unlike the ginned-up concerns about implementation of the ACA. Though the President claims a statutory basis for acting, in reality he is acting alone, without congressional authorization—just as he did in Libya and Iraq.
It is essential for members of Congress to reject the President’s unilateral action and to debate the matter themselves. If Congress specifically authorizes action against ISIL in Syria, then the President will have the authority he needs under U.S. law. Right now, he does not have that authority, and the action he announced is simply illegitimate.
Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. He is also the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press. Read an excerpt from the book.
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