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Obama, Congress, and War Powers

It should go without saying that Congressional authorization is required for an ongoing war against ISIS, but we all understand that this isn’t going to happen. Neither the post-9/11 AUMF nor the authorization for invading Iraq applies to this conflict, as Robert Golan-Vilella makes [1] very clear, and the president is not entitled to wage war on his own authority. Nonetheless, the president will probably continue to wage war without any authorizing vote from Congress because he can and because he has done so once already in his presidency and suffered no consequences. Among the many other things wrong with the Libyan war, it was illegal under U.S. law, and hardly anyone cared about this. It wouldn’t be surprising if Obama concludes that he can do the same thing in fighting ISIS, which at least has some tenuous connection to American security in a way that bombing Libya never did.

Back in 2011, the administration stood by its dishonest claim that the war in Libya never amounted to “hostilities” and therefore didn’t require Congressional action. This was transparent nonsense, but very few people worried about it. The president’s partisans mostly stayed quiet about the war’s illegality, and Republican hawks were more concerned that the U.S. wasn’t acting aggressively enough and had waited too long to start the bombing. Besides, most of the latter had no principled objection to a president waging war on his own authority, since they already held a very broad view of the executive’s war powers. The U.S. waged a war in Libya for eight months while pretending that it was not doing this, and for all practical purposes Obama got away with it.

He would have and easily could have done the same thing in Syria last summer, but encountered a problem when Parliament refused to rubber-stamp British participation in the intervention. Cameron felt compelled to back out of the impending attack, which made it more difficult for Obama to proceed without seeking a vote in Congress. While insisting that he still didn’t need to go to Congress, Obama chose to do so anyway. That was the right decision, but one that brought him far more grief and political damage than his illegal war in Libya. Since Obama obviously has no scruples about waging an illegal war, the lesson for him from these two episodes was clear: seeking authorization from Congress for military action is the politically risky and unnecessary move, and waging a war without Congressional approval is the safer bet. That’s how warped our foreign policy debate and political culture have become.

If Obama doesn’t go to Congress to get authorization for the ever-expanding mission against ISIS, he will be violating U.S. law again, but the depressing truth is that even fewer people will care this time. Many Democrats in Congress are embarrassed and annoyed [2] by Sen. Kaine’s efforts to bring the matter to a vote before the midterms, since they would rather avoid having to take a potentially controversial position so close to an election. Most Republicans in Congress see no need for a vote in the first place. One of the biggest problems that Republican hawks had with Obama during last year’s Syria debate was that he went to Congress at all, and they would probably be even more outraged if he did so again. Once again, the U.S. will wage an illegal war without any meaningful dissent from the members of Congress that have the sole constitutional responsibility for authorizing when the U.S. goes to war.

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16 Comments To "Obama, Congress, and War Powers"

#1 Comment By SDS On August 28, 2014 @ 1:10 pm

“Many Democrats in Congress are embarrassed and annoyed by Sen. Kaine’s efforts to bring the matter to a vote before the midterms, since they would rather avoid having to take a potentially controversial position so close to an election. Most Republicans in Congress see no need for a vote in the first place.”

I tremble for my country……

#2 Comment By Richard W. Bray On August 28, 2014 @ 1:32 pm

Profiles in Congressional Democratic Courage via The Hill:

“Asking anybody to take that vote within two months of an election is just stupid. Why would you put people in that position?” said a Senate Democratic aide.

A vote to authorize Obama to strike at Islamic militants in Iraq and Syria beyond the 60-day window set out by the War Powers Resolution would be a de facto referendum on the president, according to another aide.

“I think it’s dumb,” said a second Democratic aide. “The less the president is in the news with anything right now, the better.”

In a recent discussion thread of a Conor Friedersdorf article on this topic, an Obama supporter pointed out that Congress voted to support the Iraq War, and look what a fiasco that turned out to be. But the difference between legal (by American law) and illegal is not the same thing as the difference between wise and unwise. And the framers of our constitution realized that we are much better off when the decision to make war is not made to a single individual.

#3 Comment By Essayist-Lawyer On August 28, 2014 @ 1:34 pm

Congressional Republicans very much want Obama to wage war on ISIS without getting their permission first. Then they can criticize him for it when it goes badly without in any way being responsible for the outcome. If they approve it, they partially own it and will bear partial responsibility when it goes badly. Or if they refuse it, they will be responsible for whatever disaster follows our failure to intervene. Obama is a fool to play into this.

#4 Comment By Aaron On August 28, 2014 @ 1:38 pm

While I understand and appreciate your strong language, the gist is this: Congress isn’t willing to do its job. Congress doesn’t want to take responsibility for military actions and the outcomes of those actions. Congress doesn’t want to limit the President’s ability to take military action, and to absorb responsibility for preventing or cutting short a military action. As a consequence, Congress rarely votes on military actions and in doing so largely grants excessively broad authorization so they won’t be asked to do so again in relation to the same conflict — and the conception of a conflict can be very broad. Qui tacet consentire videtur.

I see plenty of room for abuse of power and, given the nature of Congress, no easy solution.

#5 Comment By Ken T On August 28, 2014 @ 1:54 pm

The fundamental problem is that Congress has, for decades, willingly abdicated it’s warmaking authority to the President. Being on record with a clear, unambiguous vote either for or against any war is politically dangerous. So instead they substitute deliberately vague “AUMFs” and other meaningless resolutions, then sit back and let the President take the risk. That’s why they were so upset when Obama insisted on requesting Congressional approval for action in Syria. That’s not the way the game is “supposed to be” played.

This won’t change until enough voters on both sides of the aisle start punishing that behavior at the voting booth.

#6 Comment By Essayist-Lawyer On August 28, 2014 @ 4:31 pm

This is not a recent development. Once Congress gives the President an army, there is very little it can effectively do to prevent him from using it as he pleases. Presidents have been using their armies without asking Congress since Jefferson sent the Marines to the shores of Tripoli.

Two things really have changed. First, since 1945 a “peacetime” President regularly has a large enough army at his disposal to fight a major war. Pre-1945 the President had to ask Congress before fighting a major war because he didn’t have the army to do it. Since the end of the Cold War, Presidents have even begun bypassing the size of army Congress has to offer by using “defense contractors.” That latter is the more alarming development because it means not only do we have unauthorized wars, we even have unauthorized armies.

#7 Comment By philadelphialawyer On August 28, 2014 @ 4:57 pm

“Neither the post-9/11 AUMF nor the authorization for invading Iraq applies to this conflict, as Robert Golan-Vilella makes very clear…”

Really? The linked R G-V post says:

“The 2002 AUMF that authorized the Iraq War might or might not be a legally plausible option to target the Islamic State, but in almost every other respect it would be a ridiculous one. The 2002 decision to remove Saddam Hussein from power was completely different from the choice Washington faces today about whether and how to combat the Islamic State. Relying on a twelve-year-old law to launch a new military campaign now would be a rather transparent attempt to circumvent the existing Congress. As I argue in the article, there is no longer any sound reason for the 2002 AUMF to exist, and the White House and others are right to want to see it repealed.”

And included are links under “might” and “might not” that argue opposite sides of the legal question. Doesn’t sound “very clear” to me, even in G-V’s opinion (which I see no reason to believe is dispositive).

As I see it, Obama has nothing but the Iraq 2002 AUMF vote, which he campaigned against so long ago, which he pilloried Hillary for voting for, which he claimed authorized a “dumb war,” and so on and so forth, as authorization for his anti ISIS bombing. Way back when, “peace” candidate and soon be Nobel Peace Prize winner Obama had nothing but scorn for that AUMF, and all who voted for it. Now, it seems, he has a choice between relying on if for the bloody and totally unnecessary campaign of death and destruction that he wants to rain down on Iraq, or relying on nothing at all. So, while it is still perhaps official Obama Administration policy that the AUMF should be repealed, the reality is that the AUMF is the only thing standing between him and yet another (as in Libya) utterly unconstitutional use of military force.

#8 Comment By AnotherBeliever On August 28, 2014 @ 5:47 pm

Congress can barely keep the government open and highways funded. It would be shocking if they could agree to even draft legislation and hold a vote on this, let alone sign off on it.

Then again, maybe that’s a feature not a bug in this case. If I were President (God forbid) I would go to Congress for authorization, in confidence that I would not obtain it. Added perk, it would give Congress, and thus the electorate, a chance to debate actual strategy and take actual responsibility for military action. If you want more war, explain your plan to your constituents and potential soldiers, Congress. What are the objectives, what does success look like, and how much will you raise taxes to pay for it?

In reality, Congress would probably punt if they are invited to this game of hot potato, especially ahead of mid term elections. Their continued ossification and gridlock pose a threat to the republic, at this point, as succeeding Presidents since Vietnam have played faster and looser with war powers and other executive actions. This doesn’t bode well in the long term.

#9 Comment By Seth Owen On August 28, 2014 @ 7:13 pm

As Aaron, Ken and others have noted, Congress long ago abdicated its responsibilities in this matter. From the POV of Congress this has actually worked out fairly well — they get the posture when convenient and avoid any real responsibility.

It’s worked out so well, as matter of fact, that Congress is well on its way yo abdicating its other responsibilities as well. (Note the whole so-called immigration crisis where the Speaker went from suing the president over executive action to telling him to solve a problem with executive action within a day or so.

Frankly, I begin to despair that this imperial rot can be arrested at this point. Mr. Buchanan may be right, you can have a republic or an empire, but not both.

Personally, I generally approve of Obama, as I consider him as, essentially, an Eisenhower Republican. He is conventional, safe, competent — “no sudden moves.” We could do worse and probably will after 2016, whether Hillary wins or the GOP take over.

We do, however, have a major systemic problem because of the dysfunctional Congress and politicized Supreme Court. Things can carry on well if we have a reasonably competent, cautious chief executive, but GWB demonstrated quite convincingly how much damage an incompetent and/or incautious one can do. With no effective check from Congress or SCOTUS, a disaster is inevitable — especially if voters should make the mistake of placing the same party in control of both political branches simultaneously. Partisanship has overwhelmed the institutional jealousies that the founders counted on.

#10 Comment By Ken T On August 28, 2014 @ 7:13 pm

“Pre-1945 the President had to ask Congress before fighting a major war because he didn’t have the army to do it.”

This may well be the single most important comment written on the internet today. Just think how many problems would be solved by reducing the Armed Forces back down to pre-WWII levels. Serial foreign policy disasters? Gone. Federal budget deficit? Gone. Bill Kristol, John McCain, and Lindsey Graham? Gone. (OK, that last one’s a joke, sort of).

But seriously, if there is one thing all non-hawks across the political spectrum should be able to agree on, this is it. There is no threat anywhere in the world today that justifies the existence of a 500,000 man standing active-duty army.

#11 Comment By Charlieford On August 28, 2014 @ 7:31 pm

There’s another way to think about supposedly “illegal wars,” and that is, rather than focusing on the letter of the law, look at how it’s applied.

So, with that in mind, while it may be true that “waging a war without Congressional approval” is quite common, we are also waging these wars without Congressional disapproval.

Congress does not insist on its prerogatives, and neither do the people.

For that reason, these aren’t any particular president’s wars; they’re our wars, and the sovereign people are responsible for them.

This is how we, as a people, have decided to do it.

Of course, we reserve the right to blame the president when we decide we don’t like a particular war anymore.

#12 Comment By EliteCommInc. On August 28, 2014 @ 9:27 pm

““Pre-1945 the President had to ask Congress before fighting a major war because he didn’t have the army to do it.”

I found this comment to be one of those so surprising that I had to look. And prior to 1945. The military was used for all manner action and the executive did not have to ask Congress.

And history is replete with the use of force minus congressional approval.

The most tired example is that of Pres. Roosevelt’s Naval show of force. But that pales in comparison to the use of force by the Commander and Chief.

#13 Comment By EliteCommInc. On August 28, 2014 @ 10:15 pm

correction: But that pales in comparison to the use of force by the Commander and Chief prior to 1945.

After taking another look at the War Powers Resolution, it very obvious it has no teeth and no limitations.

Save a report prior to the sixty day relief. And even then prior and subsequent history demonstrates that more than anything, this was an emotional/ political response to the over dreaded reactionary Vietnam conflict.

#14 Comment By Jaylib On August 30, 2014 @ 1:45 am

Add one more exhibit to the case for impeachment.

No, the Republicans can’t win that case — at least, not formally. But they can make the case, strictly in the court of public opinion, that this guy is asking for impeachment and is breaking the law. One, this educates the public. Two, maybe it puts the Obama crowd back on their heels, slows them down a bit.

What the constitutionalists in Congress need to be doing is crossing party lines as Rand Paul,Ron Wyden & Co have done on drones and the NSA. There are Democrats who care at least a little bit more about the Constitution (as they interpret it) and the integrity of their office and their House, than they do with idolizing the president and implementing the agenda handed down from on high.

#15 Comment By Jaylib On August 30, 2014 @ 1:50 am

“…. Is breaking the law….”

Meant to say: “would be breaking the law.”

#16 Comment By Fred Bowman On June 16, 2016 @ 12:51 pm

The Real Reason we keep these wars going is to enrich the coffers of the Military-Industrial-Congressional Complex.