Three Reasons Why Obama Will Not (and Should Not) Seek Congressional Okay for ISIL Strikes

by Peter Spiro

It looks like President Obama learned his lesson. Last summer he decided to seek Congress’s advance approval for a strike against Syria’s chemical weapons capabilities. Political support for the operation evaporated. Obama looked weak and waffly (the decision was taken on a dime after a 45-minute South Lawn stroll with chief of staff Denis McDonough, almost certainly not vetted through the legal chain of command). Even though the ISIS operation will probably be more significant than what he had in mind for Assad, he won’t be looking for a formal nod from Congress.

In the run-up to the decision (which will likely be announced in his speech Wednesday night) there emerged a nearly unanimous chorus of voices — scholars, lawmakers, commentators — arguing in favor of advance congressional authorization. Among law profs, those pressing the case included Jack Goldsmith, Harold Koh, Ilya Somin, Steve Vladeck and Jennifer Daskal. Tim Kaine and Ted Cruz agreed on this one. The Atlantic’s Conor Freidersdorf had this stinging column pressing for a congressional mandate.

Why Obama is better served bucking this consensus:

1. Authorization would not have been easy to get. Most sane people agree that ISIS presents a threat that needs to be addressed. Prospective military action against the entity enjoys high levels of US popular support.

But that doesn’t mean Congress would have handed Obama the authorization he sought, even on a narrowly tailored basis. Remember, Congress is totally dysfunctional. GOP members facing reelection in November may be loath to do anything that supports the President. The tradition of politics stopping at the water’s edge seems quaint.

If an authorization measure were voted down, Obama would have boxed himself into a corner. Either he would have backed down, with US (and global) security taking the hit. Or he could have persisted with the action on a lonely and legally shaky basis. Although he would surely have framed a request for congressional authorization as constitutionally discretionary (as he did with Syria), that line would have rung hollow in the wake of rejection. This is a context in which actions speak louder than words. The legitimacy of any military action following a failed authorization would have been undermined at home.

And what would Congress’s approval have won him, assuming he got it? Politically, not much. Congress’s favorability ratings are at all-time lows (it is less popular than the U.S. going communist). Anything that can get through Congress now must by definition be so popular that Congress’s approval is itself like a single candle on a crowded cake. That small reward wasn’t worth the significant downside risk of a rebuffed request.

2. Seeking congressional okay would have set a terrible precedent for the future. Leaving aside direct attacks on the United States, there won’t be an easier case for military strikes than against the Islamic State, whose brutality has provoked international revulsion. Most future cases will involve adversaries not nearly so scary. The rise of Rand Paul Republicanism will raise the bar for authorizing any military action, however well advised. Imagine a close case arising during a GOP primary season. If President Obama had asked today, his successors would have had to ask tomorrow.

In that respect, he’s lucky that the Syria CW episode mooted out before it developed any further (it almost certainly would have gone badly). As an incomplete episode it didn’t set down a constitutional precedent. It’s a lot easier to walk back from Rose Garden statement than from a closed constitutional case-file.

3. Obama has ample constitutional authority for not securing congressional authorization. There has been a lot of hair splitting on constitutional war powers lately, the unfortunate byproduct perhaps of the AUMF experience. But the basic dividing line (as nicely argued in the OLC Libya opinion) is between real wars (requiring advance congressional authorization) and everything else (not requiring it). Whatever the ISIL operation ends up being, it is unlikely to be of the former description, involving high risk of significant casualties, huge appropriations that Congress can’t refuse, and escalation. It won’t be “war” for constitutional purposes. I don’t need Article II for this. I’ll take 200+ years of history.

There will be inevitable carping about the refusal to seek the congressional okay here. But that has always been the case, even with respect to quick and painless military action. It will be a little louder than usual this time around. There are the contingencies of this particular operation, which is likely to be complicated and drawn out, with no immediate prospects of erasing the problem. There may also be a broader shift against using force in the wake of Iraq and Afghanistan. But Obama will weather the denunciations, just as have all of his predecessors, validating the constitutional order in the process.

10 Responses

  1. Peter:

    Nice post, but I’m curious where you think Jen and I argue specifically for congressional authorization… We’d been pretty clear, or so I’d hoped, that we support congressional authorization _if_ (and only if) certain things are true about the threat ISIL poses going forward that, at least based on the public record, are not yet clear.

    Indeed, the whole point of my post from this morning was to stress how there are too many unanswered questions at this point to jump right to an authorization (or, for that matter, to assume that none will be necessary).

  2. Steve, Sorry if I got it wrong, I was working from an 8/8 post that concludes: “We agree with Jack [Goldsmith] that it would be a good thing for the President to go to Congress to get an authorization for any ongoing uses of force to both protect US persons and avert a humanitarian crisis in Iraq.”

    I understand that those supporting authorization may differ as to the mode of authorization. I’m arguing against all of them. I also get the point that this will be a work in progress. One might imagine a scenario in which there is creeping escalation, and we have a Vietnam problem, but my guess is it’ll never come to that.

  3. Harold was wrong — we were at “war” or in an armed conflict in Libya. Moreover, we are in an international armed conflict in Iraq while engaging in measures of collective self-defense with the consent of Iraq against ISIS. It is the fact of war that triggers its legal existence and application of the laws of war. Further, it is an international armed conflict b/c U.S. military are dropping bombs on an insurgent (ISIS) and our presence has internationalized the armed conflict. The reason why the President does not need congressional approval is not b/c of a nonsense claim that we are not at “war,” but b/c the President has constitutional authority to engage in measures of self-defense and collective self-defense — e.g.,
    I suppose that the best argument for U.S. use of force in Syria against ISIS would be that it is still collective self-defense that is permissible under UN 51.

  4. p.s. and Congress, in the preamble to the AUMF, affirmed that the President has such constitutionally-based power.

  5. Peter — Our earlier post could have been clearer, to be sure, but our point in responding to Jack was that there _could_ be factual predicates that would justify going to Congress for a specific authorization; we just didn’t see how we knew enough to say that we were there yet. But the flip side of that coin is the same — how can we know enough to say that we’re not there yet, and never will be?

    That’s why I think the President has to provide at least somewhat more of a lens into the Administration’s thinking — what the threat is, where it is likely to persist, and what will be necessary in order for it to be quelled.

  6. What’s your bet? Questions regarding President Obama’s speech tonight:
    1. will he mention “international law”?
    2. will he mention “war” or “armed conflict”?
    3. will he mention “self-defense” or “collective self-defense”?
    4. will he mention the U.N. Charter?
    5. will he use the legally non-sensible phrase “imminent threat”?
    6. will he claim that ISIS (or ISIL) is an “insurgent” or “belligerent”?
    7. will he claim that there has been an “armed attack” by ISIS (or ISIL) on the United States, its embassies, or military personnel or other U.S. nationals?
    My bet: he should mention some of the above but won’t

  7. Hi Jordan, too bad we don’t have time to make a pool or bingo game out if this. Maybe next time.

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