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Experts ponder Obama’s War Powers curveball

September 12, 2014 by Scott Bomboy


President Barack Obama has made a case for how he can act against the terrorist group ISIL without congressional approval under the War Powers Resolution. But as of today, experts were still debating the President’s logic.


obamacspanLeading up to the President’s remarks about ISIL, observers were wondering how President Obama would justify a long-term military engagement without congressional authorization required under the Act, which was passed in 1973 but ignored by most Presidents since then.


The War Powers Resolution requires that a President must report to Congress within 48 hours after introducing military forces into hostilities and must end the use of such within 60 days unless Congress permits otherwise.


On Wednesday night, the President spoke to the nation about the ISIL threat, and said it will “take time to eradicate a cancer like ISIL.” In his speech, President Obama also made it clear he believed he had the power to act on the ISIL threat without Congress, but that he wanted congressional help in some way.


“I have the authority to address the threat from ISIL, but I believe we are strongest as a nation when the President and Congress work together.  So I welcome congressional support for this effort in order to show the world that Americans are united in confronting this danger,” he said.


Experts in presidential powers issues closely watched the speech to see if President Obama would choose one of two rationales for a prolonged military intervention in Iraq and Syria without having to ask for congressional authorization.


One possible rationale was the President’s powers under the Commander in Chief clause in Article II, Section 2, of the Constitution. The argument is quite simply that the President has the power as leader of the military to act directly against ISIL.


The other rationale was powers granted to the President by Congress under the Authorization for Use of Military Force against Iraq Resolution of 2002. Under the AUMF of 2002, President Obama would have the power to use military force in Iraq.


Instead, the White House cited a third option, the AUMF of 2001, as part of its rationale for military operations against ISIL. The AUMF of 2001 gave power to the President to attack Al Qaeda.


In a statement from a senior White House official, the Obama administration says it “has interpreted the 2001 AUMF to authorize the use of force against Al Qaeda, the Taliban, and associated forces.” However, Al Qaeda and ISIL are currently fighting each other after a bitter split. That didn’t matter to the White House, which said that ISIL considers itself as the “true inheritor of Usama bin Laden’s legacy, [so] the President may rely on the 2001 AUMF as statutory authority for the use of force against ISIL, notwithstanding the recent public split between AQ’s senior leadership and ISIL.”


Marty Lederman from the Just Security blog was one of several observers to raise questions about citing the AUMF of 2001 as underpinning U.S. military attacks on ISIL. “Ideally, the Administration would, in addition to its 2001 AUMF interpretation, draft its own, ISIL-specific AUMF and offer it for Congress’s consideration,” he said.


Writing for Time, Harvard’s Jack Goldsmith cited the broad interpretation offered by the White House as having set a larger precedent. “If this remarkably loose affiliation with Al-Qaeda brings a terrorist organization under the 2001 law, then Congress has authorized the President to use force endlessly against practically any ambitious jihadist terrorist group that fights against the United States. The President’s gambit is, at bottom, presidential unilateralism masquerading as implausible statutory interpretation,” Goldsmith argues.


Louis Fisher, a Constitution Project scholar who was the Library of Congress’ senior specialist in separation of powers issues, told USA Today that the AUMF of 2001 theory was a stretch.


“I can’t think of a single plausible argument to say that the 2001 [resolution] provides authority for indefinite strikes in Syria. ... To reach that conclusion one would have to say that the [resolution] authorized presidents to act anywhere in the world against any group that can be called terrorist. It did not say that.”


And Andrew Rudalevige from Bowdoin College, writing in the Washington Post, made an argument before the speech that the White House’s “notifications” to Congress about attacks on ISIL since early August weren’t in conformance with the War Powers Resolution anyway.


Rudalevige says President Obama has told Congress his notifications have been “consistent” with the War Powers Resolution, avoiding the use of the word “pursuant,” which is required by the Act. Avoiding the word “pursuant” would also avoid the inference by the President that he feels the War Powers Resolution is constitutional.


For now, President Obama has asked Congress to approve funds to train Syrian rebels to fights ISIL. The longer-term issue of the President’s ability to order a long-term military campaign in Iraq and Syria may go unresolved until after the November midterm elections, when a new Congress will need to decide to press the President to follow the War Powers Resolution, or explain his actions more fully.


Scott Bomboy is the editor-in-chief of the National Constitution Center.


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