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The Conservative Curmudgeon
November 21, 2014
Going To War Without Congress:
Is It Legal?
And Why Doesn't Congress Seem To Mind?
by Allan C. Brownfeld
fitzgerald griffin foundation
ALEXANDRIA, VA — U.S. military action against the so-called Islamic State, or ISIS, has been going on now for far more than 60 days. The War Powers Resolution of 1973 gives presidents 60 days to gain consent from Congress and requires him to end “hostilities” within 30 days if he fails to do so. This 90-day period ended on Sept. 6.
Few members of Congress seem to care that their own legal authority has been ignored. One who does, Sen. Rand Paul (R-KY) argues that President Obama must come to Congress to start a war and that he acted against ISIS without “true constitutional authority” since the country was not under attack at the time. “But in either case, this war is now illegal,” declares Paul. “It must be declared and made valid, or it must be ended. Obama’s...commandeering of Congress’ powers...has to stop...Taking military action against ISIS is justified. The president acting without Congress is not.”
The president says that he has independent authority to wage the new campaign on the basis of the authority Congress gave to President George W. Bush to conduct war against al Qaeda (2001) and Saddam Hussein (2002) through Authorization For Use of Military Force (AUMF).
As a presidential candidate, Barack Obama told the Boston Globe in December 2007: “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involved stopping an actual or imminent threat to the nation.”
Jack Goldsmith, a Harvard law professor and Justice Department official in the George W. Bush administration, writes that, “Compliance with the War Powers Resolution, especially for air strikes in Syria, depends on the administration’s tenuous interpretation of the 2001 authority.”
As a presidential candidate, Barack Obama told the Boston Globe in December 2007: “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involved stopping an actual or imminent threat to the nation.”
Once in power, however, those who once advocated limited government and a respect for Constitutional limits, change course. This is true of both Republicans and Democrats.
Officials in the George W. Bush administration made a concerted effort to expand presidential power.
Lawyers like David Addington, Vice President Dick Cheney’s counsel, and John Yoo, formerly a top official at the Justice Department, subscribed to a “unitive executive” theory that holds there are virtually no checks on the president’s ability to protect the country.
In a May 2009 speech, President Obama said: “We do need to update our institutions to deal with the threat. But we must do so with an abiding confidence in the rule of law and due process, in checks and balances and accountability. The decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable.”
Once in power those who once advocated limited government and a respect for Constitutional limits, change course. This is true of both Republicans and Democrats.
In a May 2009 speech, President Obama said: “We do need to update our institutions to deal with the threat. But we must do so with an abiding confidence in the rule of law and due process, in checks and balances and accountability. The decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable.”
Despite such rhetoric, Obama did not seek fresh Congressional authorization for using force in Libya in 2011 and, as of now, has not sought it for Syria and Iraq in 2014. Beyond this, the president significantly expanded drone strikes in Pakistan, Yemen and Somalia and authorized the use of drones to kill American citizens abroad without a trial. And while the president has said he will seek cooperation from Congress, he says that he does not need its authority to use force abroad.
The erosion of Congressional authority and the expansion of executive power have been going on for many years.
Louis Fisher, a scholar in residence at the Constitution Project who worked for four decades as an expert on the separation of powers at the Library of Congress, says, “I think our constitutional system was upended when President Truman went to war on his own in Korea without ever coming to Congress.”
Michael Glennon, a professor of international law at the Fletcher School of Law and Diplomacy, believes that the Truman administration marked a turning point in “the atrophy of congressional and judicial power when it comes to national security.”
It was then that the “establishment of the national security apparatus” bred “habitual deference” from the executive, legislative and judicial branches to military intelligence and law enforcement agencies, he said.
President Obama may now be establishing a dangerous precedent by using the 2001 authorization to strike at al Qaeda to justify striking an entirely different group in 2014. Ken Gude, a senior fellow at the Center for American Progress, a liberal group, says that the president is “clearly stretching the limits of that authority in a manner which likely will have precedent-setting consequences, so that a future president may similarly hold the view that they can stretch the 2001 authority as well.”
Sen. Tim Kaine (D-VA) says that neither the 2001 nor the 2002 war authorization from Congress applies to the current war against ISIS. He has introduced legislation that would narrowly authorize U.S. force. The measure would forbid ground troops and repeal the 2002 authorization of force which Kaine says is obsolete.
Prof. Bruce Ackerman of Yale, who calls the current war in Iraq and Syria “illegal,” writes that, “In refusing to publish a serious opinion defending his constitutional authority, the president is breaching a fundamental principle of the rule of law requiring public accountability. To prevent future abuses, Congress should amend the War Powers Act to require the White House to submit its legal arguments to the House and Senate and explicitly authorize lawmakers to reject spurious presidential claims of compliance. We are at a moment of danger and opportunity. Congress must decide whether it will passively acquiesce in a presidential power-grab or reassert its ultimate authority over war-making established by the Constitution and the War Powers Resolution."
The war in Iraq was not declared by Congress, nor was that in Korea or Vietnam, Panama, Haiti, Grenada or Somalia. The only formal debate on Iraq took place in October 2002 when Congress granted the president the authority to use force in Iraq if and when he decided that was necessary. During that debate, Sen. Robert Byrd (D-WV) said: “The president is hoping to secure power under the Constitution that no president has ever claimed before. He wants the power to launch this nation into war without provocation and without clear evidence of an imminent attack.”
The Constitution reserves to Congress alone the power to declare war. In Federalist No. 69, Alexander Hamilton notes that the president's authority, “...would be nominally the same with that of the king of Great Britain, but in substance, is much inferior to it. ...While that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration appertain to the legislature.”
“The decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable.”
— President Barack ObamaIn a letter to James Madison written in 1789, Thomas Jefferson wrote: “We have already given in example one effectual check to the dogs of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.”
In a letter to James Madison written in 1789, Thomas Jefferson wrote: “We have already given in example one effectual check to the dogs of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.”
Daniel Webster, who served as Secretary of State in the early 1850s, and was one of the great constitutional lawyers, wrote in 1851: “In the first place, I have to say that the war-making power rests entirely in Congress; and that the President can authorize belligerent operations only in the cases expressly provided for in the Constitution and the laws.”
The public interest is not served by violating the Constitution and giving the power to go to war to one man alone, however virtuous he may be or however idealistic his intentions.
Sadly, many members of Congress of both parties seem ready to abdicate their legal authority lest a vote for war might prove embarrassing in the future. “The last time people took a political vote in this House it was on the Iraq war,” said Rep. Loretta Sanchez (D-CA) on the House floor, “and many of my colleagues say it was the worst vote they ever took.”
At least George W. Bush went to Congress for an authorization of force. Thus far, Barack Obama has not.
In a September 18 address, Sen. Rand Paul put it very well: “When American interests are at stake, then it is incumbent upon those advocating for military action to convince Congress and the American people of that threat. ...Too often, the debate begins and ends with an assertion that our national interest is at stake without any evidence of that assertion. The burden of proof lies with those who wish to engage in war, and they must convince the people and their representatives in Congress.”
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The Conservative Curmudgeon is copyright © 2014 by Allan C. Brownfeld and the Fitzgerald Griffin Foundation. All rights reserved. Editors may use this column if this copyright information is included.Allan C. Brownfeld is the author of five books, the latest of which is The Revolution Lobby (Council for Inter-American Security). He has been a staff aide to a U.S. Vice President, Members of Congress, and the U.S. Senate Internal Subcommittee.
He is associate editor of The Lincoln Reveiw and a contributing editor to such publications as Human Events, The St. Croix Review, and The Washington Report on Middle East Affairs.
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