Our Feckless Congress Is Shirking Its Constitutional Duties On The War Against ISIS
Yesterday’s debate and vote in the British Parliament over the extension of the United Kingdom’s involvement in the war against ISIS stands as a stark reminder of the fact that, here at home, the United States Congress has failed to take any action to debate the President’s policy or to take any vote to authorize it. In part, of course, the differences in how the respective governments have proceeded is rooted in differences between how control over war making and foreign policy are handled. In the United Kingdom where David Cameron serves as the head of a government authorized to act by Parliament. Ultimately, the power to authorize military action in the British system lies with Parliament itself, although it apparently can and has delegated the authority to act in certain limited circumstances to the Prime Minister. In the United States, power is more divided. While Congress has the ultimate authority to declare war and the power to authorize or refuse to authorize specific military expenditures, the Constitution also gives the President significant discretion in this area that has historically given the President wide discretion to act, especially when Congress is compliant or simply unwilling to act. As Commander in Chief, the President has always had the recognized authority to order the use of military forces in emergency or defensive situations, or in cases where Congress could not be convened in a practical time to authorize action. The Constitution also gives the President, as Head of State, broad authority over foreign policy generally while Congressional authority in that area is generally limited to oversight, authorization of expenditures, and the confirmation of Ambassadors and ratification of Treaties by the Senate.
Over time, though, and especially since the end of World War II, Presidents have slowly expanded their authority in the war-making area notwithstanding the requirements of the Constitution, in many cases relying on threats related to the Cold War and treaty obligations through organization such as the United Nations to essentially bypass Congress. In the wake of the war in Vietnam, Congress responded by passing
the War Powers Act over President Nixon’s veto. While the intent of the law was to place limits on the ability of Presidents to commit American forces to foreign conflicts, though, the effect of the law has been to greatly enhance that power and gives the President the ability to commit U.S. military forces without seeking Congressional approval under a wide variety of circumstances. In summary, the Act “requires the president to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war.” The advantages to the President with this type of arrangement are obvious. As long as Congress is notified, the President has the legal authority to engage in virtually any military action he desires. If that action is still ongoing 90 days later, then Congress is left with the option of cutting off funding to troops in the field after they’ve already been committed — and if a President refused to withdraw troops does anyone really believe that any Court anywhere would require him to do it? —- or simply acquiescing in the President’s action. While every President since Nixon has taken the position that the Act is unconstitutional, they have typically gone through the motions of complying with the acts provisions. In no case has Congress acted to try to restrain a President who has committed U.S. forces to a military operation, and efforts by some members of Congress to attempt to enforce the provisions of the War Powers Act in the courts have consistently been rejected as a “political question” in the form of a dispute between the two elected branches of government that it would be inappropriate for the courts to get involved in. It’s easy to see why Presidents would like the present state of affairs. After all, foreign policy, and especially the use of military force, is the one area where they have the most authority to begin with, and accumulating more power in that area allows them to act unilaterally and be, well, “Presidential,” if by Presidential you mean someone who orders the military to go in and blow things up without waiting around for Congress.
That’s not to say that Congress has been entirely inactive, of course. Prior to each of the three major wars that the United States has fought over the past twenty-five years, Congress has at the very least passed some kind of resolution authorizing the President to use military force. In the wake of Iraq’s invasion of Kuwait, for example, Congress authorized President George H.W. Bush to use military force to expel Iraqi forces from Kuwait. Of course, the fact that this resolution was passed after Bush had already sent some 500,000 troops to Saudi Arabia to face off across the desert against Iraq’s Army, and after United Nations Security Council resolutions authorizing the operation that arguably would have been legally sufficient justification for Bush to act raised some complaints that the vote was just a pro forma one. Nonetheless, the issue was debated and voted on, and the action was authorized. Similarly, in the wake of September 11th attacks, Congress overwhelmingly passed a broadly worded Authorization For The Use Of Military Force that gave President George W. Bush the authority to use military force to go after al Qaeda as well as any nation that was providing the terrorist group shelter, a resolution that remains in effect to this day and which has arguably been interpreted far too broadly. Finally, and most controversially, Congress debated and passed a resolution in 2002 authorizing the Iraq War that has had political consequences for many people who supported it over the years. While none of these resolutions were formally called a “declaration of war,” legal scholars generally agreed that the satisfied the Constitutional requirements for Congressional authorization, and it’s worth noting that the Constitution does not specify the form that such a declaration must take. At the very least, one can say that in each of these cases Congress had at least some debate about the merits of the proposed action of the Presidents involved, and Members Of the House and Senators were required to take a stand on the record regarding their own approval or disapproval of that plan.
Despite several discussions about the possibility of such a debate and vote, and the insistence by legislators such as Virginia Senator Tim Kaine and Kentucky Senator Rand Paul that a vote is an essential to provide the President legitimate legal authority for his current policy. Kaine, who has gone so far as to call the Administration’s current actions in Syria and Iraq without Congressional authorization in Iraq and Syria illegal has recently been joined by Arizona Republican Jeff Flake and Connecticut Democrat Chris Murphy in his efforts to push for a debate and vote on Congressional authorization. So far, though, leadership has shown no willingness to bring the matter up for a vote and newly installed Speaker Paul Ryan has given no indication that he intends to change position from the one that was being taken by his predecessor. The Administration, meanwhile, has done with Presidents have always done when faced with Congressional unwillingness to live up to its Constitutional responsibilities. Relying largely on a flimsy legal argument that links the attacks in Iraq and Syria to the Authorization For Use Of Force that was passed in the wake of the September 11th attacks for the purpose of taking on al Qaeda, the Obama White House has engaged in a war of escalation, retreat, and then further escalation that has no clear logic and, since Congress has not weighed in on the matter, its has essentially ceded the ground to the President notwithstanding the fact that, without Congressional authorization, the Presidents war against ISIS would seem to be clearly illegal.
At the very least, Congress owes the American people an open debate on the President’s ISIS strategy. As it stands, after more than a year of a largely incoherent policy that has consisted largely of a series of fits and starts that have created a pattern of gradual escalation from humanitarian mission, to air support for Iraqi and Kurdish operations, to bombing operations in Syria and, now, the presence of American special forces on the ground in Syria, it may already be too late for that debate since the President has set the nation down a path that it will be hard to deviate from no matter what Congress on the American people want to do. Despite that, though, the debate should take place. The fact that it has not constitutes nothing less than an irresponsible shirking of Constitutional duties by Congress that the American people should be outraged about.
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