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War Powers and the White House

- September 10, 2014

President Obama meets with congressional leaders in June 2014 to discuss the situation in Iraq. (AP Photo/Pablo Martinez Monsivais)
We’ll find out more tonight, of course, but President Obama has apparently decided he does not need congressional authorization to expand air attacks on the Islamic State in Iraq, or even to extend them to Syria. “I’m confident that I have the authorization that I need to protect the American people,” he told NBC’s “Meet the Press” on Sunday. He would, however, “welcome action by the Congress that would aid the overall effort.” Cash, please, no gift cards. 
The Washington Post reports: “The White House’s belief that it has authority to act is based on the reports Obama has filed with Congress under the War Powers Act and the earlier congressional authorization for the war in Iraq.”
There are only two problems with this: the reports Obama has filed with Congress under the War Powers Act, and the earlier congressional authorization for the war in Iraq. Let’s take them in turn.
First, the Obama administration has not actually filed any reports under the War Powers Act (or rather Resolution — thus, the “WPR”).  The president has indeed sent a number of letters to Congress about the Islamic State and Iraq since June — the latest such is dated September 8 — but these are simply to keep Congress “fully informed.” Doing so is “consistent with the War Powers Resolution” (my emphasis) — but the president never says he is reporting “pursuant to” the WPR, as a consequence of that statute, as required by section 4(a)(1).  The “consistent with” is boilerplate language that far predates Obama — presidents have rarely admitted that the WPR is binding or even constitutional — but the letters do not concede that the WPR limits his authority in any way. Indeed, in each letter Obama claims that he is acting “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”
The New York Times reported Tuesday that each presidential letter might be read to restart the WPR clock, adding another 60 days to the time troops can be legally deployed. That tactic has its own issues, if “consistent with” is meant to avoid actual compliance — even leaving aside the fact that to argue that each small increment of troops to the same front is a separate use of force is something of a stretch. But either way, talk of the president’s letters, or of the “clock” (reset or not) presumes that the president’s actions are contemplated by the WPR in the first place. Are they?
Some in Congress, as well as the administration, find it convenient to think so. But it’s not obvious. As I noted last month, the WPR gives president authority to use force — in advance of “specific statutory authorization” or declaration of war — only in the case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”  The president’s Sept. 8 letter talked about defending the Haditha Dam and preventing “endangerment of U.S. personnel and facilities and large numbers of Iraqi civilians.” These are certainly good things to prevent, but also not within the letter of the WPR’s requirements.
How about the authorization to use force in Iraq (P.L. 107-243), passed nearly 12 years ago?  Is that a “specific statutory authorization” for the present circumstance? Had the Bush administration’s preferred text been adopted in 2002, Congress would have given the president power “to use all means” to “restore international peace and security in the region,” i.e., the entire Middle East, and Obama would have a great case. But the actual resolution states:

The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to --
            (1) defend the national security of the United States
        against the continuing threat posed by Iraq; and
            (2) enforce all relevant United Nations Security Council
        resolutions regarding Iraq.

Thus the authorization is for the use of force against (the state of) Iraq, rather than in Iraq. The Security Council resolutions referred to deal with weapons of mass destruction; with “repression of its civilian population”; and with “threatening its neighbors.” The Islamic State may be doing some of these things, but Iraq itself is not; indeed, the threat to the United States from Iraq’s government seems to be from the latter’s incompetence. Potential attacks within Syria’s borders seem even more removed from the authorization’s intent.
The Obama legal team may be turning instead to the prefatory clauses Congress included to justify the resolution. One says, for instance, that “the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations.” Another claims that “the President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States.”  These are indeed quite sweeping statements — but unlike the authorizing language, or for that matter the broad 2001 AUMF, the “whereas”-es do not convey statutory authority.  
Obama, of course, will argue that they don’t need to, that (as his quasi-WPR reports claim) the authority already exists. Some members of Congress seem to have adopted a “no ground troops” rule as the new normal for presidential power. But both might do well to remember their Wilsonianism — not Woodrow’s, but James’s. James Wilson, one of the advocates for a strong presidency in the Constitution, nonetheless reassured his state ratifying convention in 1787: “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large….”
The House did voice its nonbinding disapproval of the president’s evasion of the statutory limits on prisoner transfers in the Bergdahl case; and some voices in either chamber, perhaps most prominently Senate Minority Leader Mitch McConnell (R-Ky.), have called for debating the question. But mostly Congress seems happy enough to let a single man run the show. Rep. Howard P. “Buck” McKeon (R-Calif.), chairman of the House Armed Services Committee, says there isn’t enough time to debate the use of force against the Islamic State. Other matters press. After all, the new fiscal year starts in three weeks — Congress needs to pass a budget.
What? Oh. It’s not doing that either. Apparently the only place Congress will be visible this fall is in thousands of  campaign television ads. The president is just fine with that.