By Maxime Fischer-Zernin.
Over the past few weeks I’ve written articles on the President’s suspect strategy to combat the Islamic State in Iraq and Syria (ISIL) and on how this conflict fits into his grand strategy. One party that has been missing from these discussions is Congress—and from recent statements it would appear our legislative representatives are quite content flying under the radar.
After bipartisan action to approve President Obama’s proposal to arm and train moderate Syria rebels, there appears to now be bipartisan consensus to delay more substantial votes on military action in Iraq and Syria until after the new year. Although Senate Majority Leader Harry Reid (D-Nev.) has called on Congress to begin working on a bill in November, House Speaker John Boehner (R-Oh.) opposes doing a congressional Authorization of the Use of Military Force in the lame duck period.
Outgoing Congressman John Campbell (R-CA) recently outlined the risks of such Congressional delays during an interview with Yahoo! News: “This is Congress running way from its responsibility… Is there anything left to the Constitution’s requirement that it’s the Congress’s role to declare war?”
Many in the House and Senate are in agreement with Rep. Eliot Engel of New York, the top Democrat on the House Foreign Affairs Committee, who says that the President will have to come to Congress eventually. “I think that the president has an initial period under the War Powers Act to do what he needs to do,” Engel said. “If this is a sustained battle, as it will be, he has to come to the Congress for an authorization.”
Interestingly enough, in a 2007 interview President Obama was asked about war power. “The 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,” he told the Boston Globe. Given the debate in Congress and in the public square more broadly as to whether ISIL is an “actual or imminent threat,” it seems an appropriate for Congressional intervention.
Still, in an interesting contrast with the 2007 Boston Globe interview, the Obama White House says the President has the legal authority for strikes in Iraq and Syria. This opinion, however, is based on the extremely controversial Office of Legal Council opinion written by John Yoo in 2001, which concluded “the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas.”
The controversy stems in part from the opinion’s very loose interpretation of the 1973 War Powers Resolution, by which “the constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
Congress is meant to be a check on excesses in executive power, but with the exception of a few including Bob Corker, Rand Paul, and Tim Kaine in the Senate, and Nancy Pelosi in the House, Congress seems quite willing to cede power to the President to avoid a controversial vote. Speaker Boehner has said he would call for a vote only if the President drafts a resolution authorizing the use of military force (an AUMF) and submits it to Congress, rather than having an AUMF originate from Congress itself—a pathetic act of midterm politicking from a member who has rarely been shy to criticize the President for overstepping executive authority on issues far less critical that military intervention.
House Minority Leader Nancy Pelosi has recently spoken up in favor of checking executive power through an authorization originating from Congress. “If you want to define an authorization, which defines the authority that you’re giving the president, you don’t wait for the president to write it, Congress writes it,” Pelosi said, adding: “many other people within our own caucus are writing down possibilities of what an authorization will look like… I think it has to spring from Congress. It’s our decision.”
Pelosi’s calls for a vote will amount to little as long as Senate Majority Leader Harry Reid (D-Nev.) and Speaker John Boehner (R-Ohio) oppose Congressional action. “Reid and Boehner are in the same position here,” said a senior Senate Democratic aide. “They both don’t want to vote on this.” What our Congressional leaders fail to understand, or willingly choose to ignore, is that although they may be willing to wait until the new year, fighting against ISIL continues on a daily basis. Once again in Congress, politics has trumped legislating.