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Is the war against the Islamic State illegal? A new lawsuit should prompt Congress to decide.

- May 11, 2016

In April, the Supreme Court heard oral arguments about the Obama administration’s contested immigration initiatives and whether they go beyond the president’s legal authority to execute the law. Notably, the House of Representatives sent its own lawyer for the occasion.

That extra attorney was there because the court had allowed the House to formally make an unusual case: that Congress’s constitutional power to make law had been violated by what the House called Obama’s “unprecedented effort … to change the immigration laws by executive fiat.” Individual lawmakers frequently file their own amicus briefs with the court. But it is very rare for a congressional chamber as an institution to defend its collective prerogatives in this way. Speaker Paul D. Ryan thus sent out a series of tweets and press releases congratulating his members on an “extraordinary step to defend our Article I powers” that would “protect the integrity of our Constitution, and return power to the people.”

So far, so good. I have long argued that Congress needs to actively grapple with presidential claims of unilateral authority.

But this House commitment to the rule of law seems to stop at the water’s edge. Neither chamber has shown much interest in exercising one of Article I’s most basic powers, that of war and peace.

Back up a bit: For nearly two years, since June 2014, the Obama administration has used air power — and now several hundred Special Operations “advisers” — against the Islamic State organization in Iraq and Syria. The administration has promised it will put no “boots on the ground.” But despite their inadequate footwear, the special ops advisers are very much on the front lines. In early May, a Navy SEAL was killed in fighting near Irbil, Iraq. “It is a combat death, of course,” noted Defense Secretary Ash Carter — at least the third of this operation.

The 1973 War Powers Resolution aimed to require congressional authorization of “the introduction of United States Armed Forces into hostilities,” actual or imminent, “and to the continued use of such forces in hostilities or in such situations.”  Unlike some of his predecessors, Obama has not overtly argued that the WPR is unconstitutional. Rather, he has sought to claim legal compliance with its provisions while evading its restrictions.

When he ordered airstrikes in Libya in 2011, for example, Obama argued the WPR did not apply because the operation there did not constitute “hostilities” under the meaning of the resolution. In 2013, in the debate over the “red lines” crossed by the Syrian regime’s use of chemical weapons, the president said he did not need congressional approval to take military action — though he did decide to ask for it, before abandoning the idea of airstrikes.

The Islamic State operation has been far more extended, and extensive. Here, too, the White House seems to agree that the WPR might, in theory, apply. But it holds that Congress has already approved the present fighting, thus satisfying the WPR’s requirements.

This seems strange. After all, lawmakers have refused to debate the authorization of force resolution Obama sent them back in February 2015 at the behest of then-Speaker John Boehner. Nor have they taken up other, similar bills, such as the one introduced by Senate Majority Leader Mitch McConnell several months ago.

So how could the war be authorized? The White House answer is familiar (and similar to its answer to questions about drones and surveillance): the Authorization for the Use of Military Force (AUMF) passed just after the 9/11 attacks. The logic is that the Islamic State used to be part of al-Qaeda, and thus the AUMF authorizes the war against the Islamic State. Stephen Preston, the Pentagon’s general counsel, put it this way in April 2015: “the name may have changed, but the group … has been an enemy of the United States within the scope of the 2001 AUMF continuously since at least 2004.”

And yet the Islamic State did not exist in 2001 when the AUMF was adopted, and al-Qaeda is now its enemy. Reliance on the 2001 law, critics argue, makes its authority practically limitless. This is the “six degrees of al-Qaeda” problem. Do splinter groups from the Islamic State count? Groups that splinter from the splinter groups? Indeed, the administration argues that the March 2016 airstrikes that killed about 150 al-Shabab militants in Somalia were also authorized by the same law.

Which brings us back to court. Last week, Army Captain Nathan Smith filed a lawsuit, asking a U.S. District Court to declare that “President Obama’s war against ISIS is illegal because Congress has not authorized it.” He argues that the WPR’s requirements have not been met, and that under the 1804 case Little v. Barreme, presidential orders must be “strictly warranted by law.”

If the court holds that Smith has standing, the result could be the first direct judicial analysis of the scope of the War Powers Resolution. So will the House seek to file an amicus brief in this suit, too?

The answer is … probably not.

But that’s not how to boost institutional self-respect anyway. Rather, lawmakers need to pay sustained attention both to updating the text of the 2001 authorization and to what is needed in the battle against the Islamic State. Their inaction accretes into acquiescence — and sets new precedents not just for this administration but also for those to come.

If war is the right choice, it should flow not from inertia but from deliberation over national priorities, and from analysis of the costs and benefits of delegating additional powers to the executive branch. In short: Congress should congratulate itself over legislating, rather than for its lawsuits.