Pitiful: Congress set to let Obama ignore War Powers Act again in attacking ISIS

I think this is actually worse than when they looked the other way at him waging war unilaterally in Libya. That was lazy and cowardly too, but you could understand where the cowardice was coming from, at least. Libya was politically risky. There were good arguments that we had no vital interests there and that knocking out Qaddafi would lead to something even worse, up to and including a civil war between jihadis and other Libyans (which turned out to be true); there were also good arguments that a slaughter was in the offing if the west didn’t intervene to protect the rebels and that aiding regional populists would help build U.S. influence abroad during the Arab Spring. You can loathe Congress’s gutlessness in refusing to take a position on that while acknowledging that it wasn’t an easy call. Smashing ISIS is an easy call. They’re building a terrorist state inside a country on which the U.S. spent massive amounts of blood and treasure to remake. They’re going to destabilize every friendly Arab power in the region if they’re not stopped, and they may have already reached a level of military prowess that no local army can handle the job. Giving Obama authority to hit them is a no-brainer. The bill will pass easily. Even Senate Democrats are begging for it. Even Rand Paul is begging for it.

But they’re not going to do it, whether because there’s not enough time or Obama hasn’t been clear enough on what he wants to do or yadda yadda yadda. Between this, HHS’s waiver of various statutory deadlines under ObamaCare, and O’s looming executive order on amnesty, we’re building a mighty solid foundation for rogue executive action as a matter of course in American politics going forward.

“Members will certainly have discussions about the path forward on [ISIS] when they return next week, but how could Congress vote to authorize some action when the president hasn’t even made a compelling case to the American people about what our national objective and strategy should be?” a senior House GOP aide told The Daily Beast…

In fact, the White House has been totally mum on how it plans to legally justify the air war in Iraq after the temporary authority granted to it in the War Powers Resolution expires. According to the 1973 law, the president must report to Congress when he uses U.S. military force in a hostile environment; Congress must then specifically authorize such action within 60 days or the president has to stop. The president can invoke a one-time, 30-day extension…

The War Powers clock expires Oct. 8, with a possible extension to Nov. 8. But the administration could argue that each new notification resets the clock and gives the president ongoing authority to attack in Iraq. To most in Congress, that’s disingenuous at best, because the strikes are all part of the same operation and are all against the same foe in the same country…

[W]ith only two weeks in September to legislate, there’s little to no chance Congress will act before its next recess, which means the issue will be punted to the post-election lame duck session

A few things here. One: It’s simply not true that the War Powers Act gives the president 60 days to wage war on his own, whenever and however he pleases, before he’s forced to come to Congress. That’s a popular misunderstanding of the law. Read it yourself. It says right up front that the president is allowed to take military action in three circumstances only: After Congress formally declares war, after Congress passes some other type of statute authorizing military force (i.e. an AUMF), or when there’s “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” The threat ISIS poses to U.S. personnel stationed in Kurdistan arguably falls under the third category, but does it really rise to a “national emergency”? If so, given the number of countries where U.S. personnel are stationed abroad, doesn’t every local threat qualify as a national emergency? Category three is aimed at things like Pearl Harbor or 9/11, I think, when there’s reason to fear a more comprehensive attack on the continental U.S. is in the offing.

Two: Even if you think the threat to Americans in Irbil qualifies as a “national emergency,” the idea that O could evade the War Powers Act by somehow “resetting” the 60-day clock on his authority with periodic reports to Congress is moronic. The White House itself hasn’t argued that as far as I know, likely because it’s so insulting to the public’s intelligence that it’d end up doing Obama more harm than good. If the president can reset his legal power to wage war unilaterally whenever he wants, then the War Powers Act is meaningless. Congress would have no check over him at all. You’re better off in that case arguing that the War Powers Act is unconstitutional in its entirety as an infringement on the commander-in-chief’s Article II powers, as many hawks do. Although how they square that with Congress’s Article I power to declare war is beyond me.

Three: Congress’s excuse for not acting here appears to be the fact that Obama hasn’t laid out a clear strategy for them yet. One GOP Senate aide told Josh Rogin that “the president has to be the prime mover” in this. Rand Paul told Fox News this morning that a true leader “would come to Congress and call for a joint session of Congress, and he would ask for permission, that’s the way the Constitution works.” Er, since when? Where does it say that Congress can’t act to authorize force unless and until the president lays out a soup-to-nuts plan for what he wants to achieve with military action? The fear from our very fearful legislators appears to be that they’ll gamble on authorizing force and then O will blow up a few pick-up trucks, ISIS will keep advancing until it takes Baghdad, and then Congress will be on the hook politically with O because he’s a bad C-in-C. There are ways to deal with that, though: Congress could state explicitly in its AUMF that they’re authorizing Obama to destroy ISIS, nothing more or less (which is what the burgeoning western coalition appears ready to do anyway). If he refuses, legislators could point back to that text later to say that O didn’t carry out their wishes. If they’re worried about too much escalation, with O putting boots on the ground and the U.S. taking casualties, they could add something to the text to that effect too — “the president is hereby authorized to use the air power of the United States,” etc. That’s probably unconstitutional since it presumes to force the C-in-C into prosecuting a war in a particular way, but Congress doesn’t care about that. They’re looking for political cover here and a “no boots on the ground!” clause in the AUMF would give it to them. If O wants to ignore that, he can. And unlike ignoring the War Powers Act entirely, he’d be on firm constitutional ground in doing so.