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Reserving the Right to Object
Should Congress Pass the 'Authorization to Use Military Force' as Proposed by President Obama?
March 1, 2015 - By Charles E. Greenawalt, Ph.D., Senior Fellow
America’s 44th president, Barack Obama, has asked Congress to authorize the use of force against the Islamic State—ISIS. The Islamic State, also known as the Islamic State of Iraq and al-Sham is a distinctive variety of Islam with strong beliefs about mankind’s path to the Day of Judgment.

In his State of the Union address, the president argued: “We need that authority.” This presidential assertion is simply not true. For a half year, Obama has been deploying American military force against ISIS. With two existing Congressional authorizations for the use of military force (AUMF), and most importantly, his Constitutional power as Commander-in-Chief, he has all the authority that any American chief executive needs to fight a foreign foe.

Constitutional authority in foreign affairs was vaguely defined by our Founding Fathers. In fact, Edward Corwin, one of America’s most esteemed Constitutional law scholars, once described American foreign policy as “the invitation to struggle” for the executive and legislative branches of government due to this lack of clarity on the part of our Founding Fathers. Jefferson, for example, believed that he could only initiate the use of American military forces against an enemy for defensive purposes. When he wanted to send the strengthened U.S. Navy along with the newly created Marines to crush the activity of the Barbary Pirates, he went to Congress for backing. However, in 1846 President Polk ordered American military forces into disputed territory with Mexico, a prelude to the Mexican War. Acting on his own, President Pierce dispatched Commodore Perry to Japan in 1854 to open it to trade. Other presidents, such as William McKinley and Theodore Roosevelt also deployed the military without Congressional approval. McKinley sent 5,000 American troops to China to help quell the Boxer Rebellion without Congressional approval. President Roosevelt sent troops to the Caribbean without legislative assent. When Congress balked at the cost of sending America’s powerful new Navy, the Great White Fleet, on an around-the-world cruise to show the flag and flex our new military capabilities, Teddy simply sent the fleet to the Philippines, saying that if Congress wanted the Navy to return to America’s shores, it would have to fund those operational costs.

In the post-World War II era, however, presidents, beginning with Harry Truman, have turned to the Congress before they have used military forces in order to strengthen American unity and give themselves “political cover.” Truman went to Congress for funding but also for its support as he launched his containment strategy against the Soviet Union that became known as “The Truman Doctrine.” Subsequent presidents from Dwight Eisenhower to George W. Bush have sought Congressional support before deploying different forms of American military might around the world.

The prerogatives given to our chief executive and our national legislature in foreign affairs, however, changed again in 1973, as the Congress went on the offensive and passed the War Powers Act. While both branches have observed this legislation since its enactment, both branches also realize that it constitutes a legislative veto. The Supreme Court has clearly determined that legislative vetoes are unconstitutional. Hence, the 1973 War Powers Act is unconstitutional as well. At the time of its passage, many papers, such as The Wall Street Journal, declared that it was unconstitutional—legions of government scholars know it. How has it survived? It has survived due to the unpredictability of rulings from the same Supreme Court. One can never be quite certain how the Court might rule on an issue, the example of Justice Roberts’ apparent flip-flop on the Affordable Care Act springs to mind. Accounts from the Court reveal that his vote to uphold the Act was based not on his best interpretation of the law, but on his concern about how the American public might view the Court, if the Act was overturned. Due to this unpredictability and the fact that both branches fear losing such a court case over the constitutionality of the War Powers Act, both parties have learned how to live with the Act. The continued presence of the Act, has compelled each presidential administration to work with the various Congresses to craft a foreign policy relationship with which they can both live.

As Charles Stimson of the Heritage Foundation affirms, “As a general principle when a President puts our troops in harm’s way for a sustained period of time, it is advisable for him to propose, consult with, and obtain express authorization from Congress.” At present, the Obama Administration is relying on the inherent power as Commander-in-Chief as well as two existing Congressional authorizations of force to conduct its operations against ISIS in Iraq and Syria. The two existing AUMFs are the post-9/11 authorization to pursue al-Qaida and its affiliates and the 2002 authorization for Operation Iraqi Freedom.

Therefore, why did President Obama request a new AUMF from Congress during his September 10th address to the nation? I agree with Marc Thiessen of The Washington Post who believes that the President is rankled to have to rely on the legal authorization for a war in Iraq that he repeatedly proclaimed that he ended. Susan Rice, his national security advisor, wrote to House Speaker John Boehner in July and argued that the 2002 AUMF was no longer operative since the Obama Administration had withdrawn all combat troops. Now, the President is relying on that same AUMF to fight ISIS. It is easy to discern that just because Obama withdrew American combat troops does not mean that the conflict ended. In fact, his withdrawal of American combat forces created a vacuum that revived the spark of the Islamic State, and a conflict was restarted that America had already won. There is no reason to pass a new AUMF to fight the same war, just to give credence to the myth that Obama ended the Iraqi war.

In addition, the President has requested a new AUMF that limits the use of military force to three years and does not permit the use of American forces in enduring offensive ground combat operations. Therefore, Obama is the first president who has formally requested Congress to restrict the authority of the Commander-in-Chief to fight a war. This is a ploy to restrict presidential authority and tie the hands of his successor. One can only speculate that these actions are designed to protect what he considers to be his legacy while transforming the presidency in a manner dictated by his ideological beliefs.

At this point, one sees an Obama legacy in the Middle East of increased Islamic radicalism, an increase of perhaps as much as fourfold. Iraq and Syria are in flames, Libya is controlled by Islamic radicals, Yemen has collapsed, and the Taliban is eagerly waiting for the President to fulfill his pledge to withdraw all American forces from Afghanistan before he leaves office so that they can fill the new power vacuum that will appear at that time.

In closing, the Congress should not provide President Obama with the AUMF that he has requested. He and his Administration have all the legal authority that is necessary to fight and defeat ISIS, if American forces are used wisely. How much longer our military can operate effectively under an Administration that has deployed them so poorly is a significant and unanswered question. In many parliamentary systems of government, this situation would have been resolved long ago by a simple vote of “no confidence” in the government with the replacement of the chief executive.

Nothing presented here should be considered as an attempt to aid or hinder the passage of any Legislation.


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