Though most members of Congress are generally supportive of the air strikes against Islamic State terrorists in Iraq, many say President Barack Obama has a constitutional obligation to get congressional approval if the operation is prolonged. Obama, so far, has not given a timeframe.
A U.S. F/A-18 fighter jet takes off for Iraq from the flight deck of the U.S. Navy aircraft carrier USS George H.W. Bush in the Persian Gulf, Monday, Aug. 11, 2014. U.S. military officials said American fighter aircraft struck and destroyed several vehicles Sunday that were part of an Islamic State group convoy moving to attack Kurdish forces defending the northeastern Iraqi city of Irbil. (AP Photo/Hasan Jamali)
Constitutional law experts disagree on whether the president must get congressional authorization at all, under either his constitutional authority or under the War Powers Act.
“If it's not a violation now, it will be if it continues without congressional authorization,” Ilya Somin, a law professor at George Mason University, told TheBlaze. “If it happens to rise to the level of war, it will require congressional authorization. There is debate about how large a force has to be before it's a war, but ongoing air strikes over weeks and months would require congressional authorization.”
As commander-in-chief, the president does not need to get congressional approval to continue the attacks because the Islamic State poses a viable threat to the United States, said Jon Yoo, a former Justice Department attorney during the Bush administration specializing in national security matters.
“The practical limitation on the president's commander-in-chief power is Congress's power over the purse and its sole right to raise and support the military,” Yoo, now a law professor at University of California at Berkeley, told TheBlaze. “Without Congress's support, President Obama cannot long afford the costs of extended air operations over Iraq.”
Yoo does not anticipate such a showdown in this case.
“Despite the muted complaints of Democratic isolationists and Rand Paul supporters, the majority in Congress I believe want the president to be more aggressive in Iraq, not less, and funding should be readily approved,” Yoo added. “No constitutional conflict will result.”
The airstrikes commenced late last week in concurrence with a humanitarian effort to help Christians and Yazidis facing persecution and potential genocide in the country.
The House voted overwhelmingly in late July, 370-40, calling for Obama to get congressional approval for any sustained troop presence. But it was a non-binding resolution.
Meanwhile, most of the warnings to Obama have come from prominent members of his own party. Sen. Tim Kaine (D-Va.), a former chairman of the Democratic National Committee, said earlier this week Obama should get congressional approval. “This is especially the case since the president has indicated that our renewed military engagement in Iraq could be a long-term project,” Kaine said.
Also this week, House Minority Whip Steny Hoyer (D-Md.), said, “All of us agree that boots on the ground are not in the offing, at this point in time, nor should they be … without further consultation and action by the Congress.”
Beyond the Constitution, there is the War Powers Act, that some conservative contend is not a constitutional law. The 1973 law, enacted over the veto of President Richard Nixon, says that the president can only send combat troops when where there are imminent hostilities for 60 days before he has to get congressional authorization to continue.
On this point, both Somin and Yoo also disagree.
Yoo said this is in part because Congress already authorized the use of force in Iraq.
“The 2002 authorization to use military force against Iraq is still on the books, and provides the president with continuing legal support,” Yoo said. “The AUMF is not just limited to removing Saddam Hussein.”
The authorization 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.”
Somin contends that Article 1 of the Constitution gives Congress authority over land and naval forces and controlling deployment. Therefore, the War Powers Act, he said, is perfectly constitutional and does obligate the president to involve Congress.
White House press secretary Josh Earnest said last week that Obama will abide by the War Powers Act and has kept Congress engaged.
“Consistent with those consultations, the administration will comply with any applicable reporting requirements in the War Powers Resolution,” Earnest said. “Sometimes these War Power notifications are classified, sometimes they aren’t—in this case, if one is necessary and if our lawyers determine that it is necessary, I would anticipate that is something we likely would be able to release publicly.”
As a matter of policy, Somin has no problem with taking the fight to the Islamic State.
“I don't myself think it's a problem to go after ISIS with air strikes from a policy standpoint. I think it's is better legally and politically if Congress authorizes it,” Somin said. “ISIS is more of a threat to the U.S. than Moammar Gadhafi was in 2011. This is better than the case for striking Syria because in Syria both sides were arguably just as bad. Whatever the flaws in the Iraqi government, they and the Kurds are better morally and better for American interests than ISIS.”
Follow Fred Lucas (@FredVLucas3) on Twitter