- - Thursday, July 9, 2015

On July 11, 2014, Representative Jim McGovern rose on the House floor in support of a resolution to prohibit President Obama from going to war against the Islamic State of Iraq and the Levant absent specific authorization from Congress.

“Now, Mr. Speaker, is the time to debate our new engagement in Iraq,” he said. “Now, before the next addition of more troops takes place… Now, Mr. Speaker, before we are forced to fire our first shots or drop our first bombs.” “The longer we put off carrying out our constitutional responsibilities,” he warned, “the easier it becomes to just drift along.”

The House  passed the resolution overwhelmingly. And yet, a year later, abetted by the Obama administration’s acrobatic lawyering, Congress remains adrift.

Save for a few notable exceptions, members have stood by while the President unilaterally embarks on a large-scale, long-term military campaign against ISIL that has already involved more than 5,000 airstrikes and multiple troop deployments. President Obama has said repeatedly that he would welcome congressional approval for the ISIL war, but emphasizes that he does not need it. Both branches are failing the Constitution.

Article I, Section 8 of the Constitution vests Congress with the power to decide on war. The executive’s role is to wage war once authorized, but only within the parameters that Congress sets. There are good reasons for this division of responsibilities.

“War is in fact the true nurse of executive aggrandizement,” James Madison explained. No single person should be entrusted with the awesome power to decide the question of war or peace, because “the temptation would be too great.” So, the Framers insisted that the decision to use military force be reached through collective judgment. This check on the executive ensures that our elected representatives are politically accountable when young Americans are put in harm’s way. It gives those who ultimately bear the costs of war – the American people – a voice in that decision.

The Obama administration has circumvented these constitutional rules in two ways. First, the President continues to claim authority as commander in chief and pursuant to his foreign affairs powers to conduct aspects of the ISIL war without congressional approval. (The extent of President Obama’s Article II claim remains unknown because the administration has not publicly explained it). To be sure, the Constitution permits the executive to act alone in narrow circumstances – to defend the country against an actual or imminent attack, and arguably to rescue American hostages. But the military campaign against ISIL long ago surpassed those very limited exceptions.

Second, and perhaps more troubling, the President maintains that Congress already signed off on the ISIL war – twice. In a letter to Congress last September, he stated that he was acting on the basis of a 13 year-old law that authorized using force against the perpetrators of the September 11 attacks and those who harbored them, and a 12 year-old law that authorized the invasion of Saddam Hussein’s Iraq. Remarks by administration officials over the last year, along with a recently revealed White House document that reads like a set of talking points, have added scant analytical meat to the bones of that claim. The administration has produced no evidence that Congress intended to authorize, or even foresaw, the ISIL war back in 2001 and 2002, because there isn’t any.

Unfortunately, Congress has not meaningfully pushed back. A handful of members in both the House and Senate have tried hard to force a debate and vote on the ISIL war, but neither chamber has followed through despite what appears to be a majority in favor of military action. Disagreements over the scope of the mission, some members’ seeming desire to avoid accountability, and a general – very troubling – sense that congressional authorization would have little practical effect in light of the administration’s claims of pre-existing authority, have all entrenched the status quo.

If it continues, Congress risks more permanently ceding precisely the kind of power that the Constitution was designed to prohibit the executive from wielding.

Congress can still escape this result, but it must act now. If members collectively believe that the United States should continue to engage ISIL militarily, they should pass a statute to that effect. They should specify against whom the President is authorized to use force, to what end, and for how long. They should prohibit the President from continuing to rely on old laws that were never meant for the ISIL war.

They should speak clearly and unambiguously, so that no president can circumvent their will or otherwise lay claim to the power and responsibility that the Constitution assigns to them alone.

Scott Roehm is Senior Counsel at The Constitution Project

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