Hot new legal theory: Obama has the power to declare war unless Congress objects

This story’s almost a week old but I stumbled upon it last night and want to make sure it doesn’t disappear. As the Times notes, courts have occasionally found in cases involving executive power grabs that Congress has tacitly consented to presidential authority over a policy matter by declining to oppose the president’s assertion of it.

But what if the president’s claiming a power that the Constitution explicitly grants to Congress, like, say, the Article I power to declare war? Can they tacitly consent to make that an executive power too, even though doing so would amount to a de facto constitutional amendment? Answer: Maybe!

The House and Senate swiftly passed a rebel-training bill, but it did not address the executive branch’s claim about the 2001 and 2002 authorizations. Members of Congress have also introduced a flurry of bills that would explicitly authorize force against the Islamic State, but none repudiate the administration’s interpretation of existing laws, either.

The Obama legal team’s broad interpretation of the old authorizations has drawn criticism. But several legal specialists said that because Congress was on notice about how the executive branch was interpreting its 2001 and 2002 statutes, any failure to challenge that theory — especially as it enacted other legislation in connection with Islamic State policy — could be interpreted as ratifying it.

“The Supreme Court has said that sometimes, congressional silence means Congress has approved of what the executive has done,” said Barry Friedman, a New York University law professor. “If Congress, for political reasons, is unwilling or unable to speak up and the executive goes forward with its somewhat questionable theory, in the future, courts may well treat Congress’s silence as granting permission.”

In other words, the fact that Congress authorized O to arm the rebels last week while he’s busy claiming he already has authority to hit ISIS under the old AUMFs against Al Qaeda and Saddam sort of implies that they agree that he does. Why any court would stoop to teasing out legislative purpose from implications and pregnant silences in a matter as grave as war, though, is beyond me. If the power to declare war means anything, I would think, it means the people’s consent hasn’t been given until Congress does some declarin’. Trying to shoehorn authority for a new offensive in a new country against a new enemy that used to be part of an old enemy but isn’t anymore into old statutes is way too cutesy for constitutional work, especially from a guy who enjoyed reminding people six years ago that his con law background meant he’d be more of a stickler on these things than that warmongering chimp, George Bush.

As it is, if courts follow the administration’s view of this, it could lead to one of two types of precedent. A weak precedent would be that the president has Congress’s tacit consent to wage war if he can base his actions on some earlier statute that Congress passed, like the post-9/11 AUMFs. That would preserve some limits on executive power. If, for instance, Obama decided for some nutty reason that he wanted to hit pro-Russian separatists in eastern Ukraine, there’d be no obvious statutory basis for him to do so. In that case, a court might decide that it can’t impute tacit consent to Congress even if they decline to formally oppose O’s actions. A strong precedent, by contrast, would be that the president has Congress’s tacit consent to wage war if they’ve declined to object past a certain point (say, the 60-day timeframe mentioned in the War Powers Act) even if the president’s not basing his action on some prior AUMF. In other words, Obama could say “I’m hitting Putin’s proxies” and then the clock would start on Congress to pass a bill withdrawing authority. If they haven’t after 60 days (especially if they’ve passed other bills in the interim that don’t mention the president’s Ukraine action), then they’ve ratified the war indirectly. They can withdraw funding for the operation at that point, potentially endangering U.S. personnel in the field, or just live with it. That scenario would turn the War Powers Act on its head, as it’s the president who’s supposed to be on the clock after he sends the military into battle, not Congress.

But that would also be of a piece with Democrats’ new view of broad executive power. Remember, some of them think that Obama somehow magically enjoys more presidential power (like, say, on immigration) whenever Congress is gridlocked. He doesn’t, of course — that’s anathema to enumerated powers — but go figure that lefties like the idea of a liberal president getting to enact his agenda by diktat when House Republicans refuse to go along with it. It’s a small leap from that framework, “gridlock means the president can act,” to the one described above, “congressional silence means the president can act abroad.” We’re creeping, in other words, towards a model of democracy where the “consent of the governed” means authoritarian executive power grabs rubber-stamped by the people’s representatives by implication, not even by formal ratification. It’s a slo-mo enabling act, except the act is merely assumed to have passed the legislature. Case in point:

We don’t believe that Congress would have intended to remove the president’s authority to use force against [ISIS] simply because they group had a disagreement with Al Qaeda leadership. So based on that history, based on their longtime connections to Al Qaeda and based on the fact that they continue to be in conflict with the United States and US partners and allies we believe that that the 2001 AUMF would still apply,” the official said.

We could clear that up by having Congress pass a new bill saying whether we should go to war with ISIS or not, but since our representatives are cowards and Obama is an authoritarian, we’re going to settle for half-assed theories of what Congress probably would have wanted if they ever actually addressed this issue instead. Disgraceful, but that’s where we are now. And it’s also disgraceful, needless to say, that the media’s relatively unbothered by all this. Peter Suderman wrote yesterday that Obama is effectively uncheckable on war matters because Congress won’t do it and the courts, realistically, can’t do it. But he is checkable: If the media treated this as a constitutional crisis and got the public alarmed, Obama would back down for reasons of simple political expedience. Instead, despite some chin-pulling about where exactly his authority to fight ISIS comes from, they’re chill about it — of course. That’s the last check, and it failed.

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