The mass murders in Paris on Friday by the Islamic State terrorist group have prompted an outpouring of sorrow, anger, bellicose rhetoric — and no small amount of political grandstanding — here in the United States.
What they have not prompted is any expectation that Congress will actually do its Constitutional job — the small job of deliberating matters of war and peace.
In a press conference on Monday, President Obama was asked what was essentially the same question about war against Islamic State five times in a row. In CNN reporter Jim Acosta’s version, “why can’t we take out these b—–ds? In line with other GOP candidates for the presidency, Jeb Bush urged the United States to “declare war” on the Islamic State (orISIS or ISIL or Daesh, as many world leaders are now calling the terrorist group).
But no one in the media asked about whether Obama had the authority to expand the war, assuming that he wanted to.
And despite the way Bush framed his policy, approaching Congress for a formal declaration of war was not on his immediate to-do list. His focus was on the president. “Lead,” Bush said. “I want him to lead.”
Here are two points to consider.
1. Is aggressive action the same as “leadership?”
Seeing these treated as equivalent is hardly new to scholars on the presidency. William Howell writes in “Thinking About the Presidency”:
… in every policy domain, presidents must not only demonstrate involvement, they must act – and they must do so for all to see, visibly, forthrightly, and expediently. Deliberation must not substitute for action (p. 6)….
Presidents who fail to act, even when the statutory or constitutional basis for action is dubious, face the prospect of a substantial political backlash (p. 105).
Note that Howell’s book does not take a position on whether this is a good thing.
But I will: It’s not. The presidential advising literature (see, e.g, Richard Pious’s “Why Presidents Fail“) is rife with examples of decisions made without due consideration of complicated alternatives. Unintended consequences can leave the country (and president) worse off than before. (A recent documentary about CIA directors fleshes out one regionally relevant example…)
We don’t have to concede Obama’s claim that he is right about the substance of Syrian policy to agree that “style points” (recalling Obama’s response to similar criticism two years ago) are not the main aim of the policymaking process.
2. It’s time for Congress to weigh in.
Despite his critics’ charges of “weakness,” Obama’s actions in Syria — and recall that two weeks before the Paris attacks, he had approved the use of special forces on the ground against the Islamic State — are already pushing the boundaries of his unilateral authority. Going further still would even more clearly require Congressional debate and approval.
As the U.S. intervention in Syria has grown, the Obama administration has justified the president’s escalation by variously invoking his Constitutional title in Article II as commander-in-chief of the armed forces; the War Powers Resolution; the 2001 Authorization for the Use of Military Force (AUMF) passed shortly after the 9/11 attacks; and the 2002 resolution authorizing the invasion of Iraq.
In September, the White House largely settled on the 2001 AUMF (with a recent sprinkling of Article II) for good measure. White House press secretary Josh Earnest said in an Oct. 30 press briefing that, “The answer simply is that Congress, in 2001, did give the executive branch authorization to take this action, and there’s no debating that.”
In the Democratic debate Saturday night, Hillary Clinton likewise said that “we have an authorization to use military force against terrorists. We passed it after 9/11.” Moderator John Dickerson followed up: “And you think that covers all of this?” Clinton replied, “It certainly does cover it. I would like to see it updated.”
There is in fact plenty of “debating that,” and a good deal of uncertainty about whether “it certainly does cover it.”
The 2001 AUMF was designed to give the president a good deal of latitude — in responding to the 9/11 attacks. It states:
…the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
But the Islamic State didn’t exist on 9/11. The administration is relying on the idea that the Islamic State was once associated with al-Qaeda, but even al-Qaeda has since disavowed its even-more-evil twin. How many degrees of separation would the administration’s lawyers be able to justify in this manner? (See here for some of these objections in more detail as they were raised in 2014, and here for a more recent assessment.) The Article II claims, which normally apply to defending the United States against attack, seem even less plausible.
Congress does not want to debate the use of military force.
But Earnest is absolutely right in a literal sense: There is no debate on the issue currently.
Recall that after many demands from lawmakers who did not want to take a proactive role, back in February 2015 President Obama sent Congress a draft Authorization for the Use of Military Force.
Obama’s version would have repealed the 2002 AUMF but kept the 2001 version in place. It provided for a three-year window in which the president was authorized “to use the Armed Forces of the United States as the President determines to be necessary and appropriate against ISIL or associated persons or forces,” though it did not allow for the use of American troops in “enduring offensive ground combat operations.”
Some members thought this too strong, some too weak, Sen. John McCain (R-Ariz.) settled on simply calling it “nonsense,” and the draft itself received no serious legislative consideration.
Neither did a more restrictive version introduced by Rep. Adam Schiff (D-Calif.). Nor did a less restrictive version introduced by Rep. Adam Kinzinger (R-Ill.). Nor did a resolution offered by Rep. Barbara Lee (D-Calif.), which requires Congress to do nothing but “directs the President to develop and submit to Congress a comprehensive diplomatic, political, economic, and regionally led strategy to degrade and dismantle the Islamic State in Iraq and the Levant (ISIL).”
Rep. Jim McGovern (D-Mass.) did manage to use parliamentary procedure under the War Powers Resolution to force a roll call on the blunt question of withdrawing forces from Syria and Iraq altogether. This was rejected, with 288 members voting against withdrawal.
While a handful of lawmakers, including Sens. Tim Kaine (D-Va.) and Jeff Flake (R-Ariz.), have continued to push for consideration of a new AUMF, Senate Foreign Relations chair Bob Corker (R-Tenn.) says that “I believe the administration has the authorities to do what they’re doing against ISIS.” Or as Senate minority leader Harry Reid (D-Nev.) put it, “I don’t believe in AUMFs.”
But that’s Congress’s job.
Yet even if we stipulate that present authorities are sufficient for the administration’s current tactics, that wouldn’t hold for the substantial expansion of hostilities legislative voices are calling for. It is one thing to go to war after a debate over national priorities and the pros and cons of delegating additional powers to the executive branch. It is another for that to happen in the absence of deliberation — not by leadership but by inertia — because members of Congress don’t want to do the hard work of making hard choices.
Given the rhetoric emanating from the campaign trail and from Capitol Hill, it is time for debate: time to believe in AUMFs again.