Obama’s Iraq Strikes And Executive Power

Thousands flee Iraq's Mosul

Ed Krayewski’s not so sure Obama’s decision to re-intervene in Iraq is a good idea, but he’s positive that intervening without Congress’s formal sanction is a bad idea:

As a murderous regime intent on dragging the Middle East back into the Dark Ages makes advances in the region, it’s worth remembering how governments there have encouraged virulent strains of extremist Islam as a way to maintain their own power. If the U.S. were to intervene to defeat ISIL, it would almost certainly cause more harm than good. Yet with ISIL hunting down minorities in Iraq and the Iraqi government powerless to do anything to stop them, the question of whether the U.S. ought to intervene to protect those civilians from ISIL and a situation U.S. policy helped create is a harder one to answer. President Obama’s decision to order limited air strikes in this situation may not be the wrong call. But, given the last half century of U.S. war policy, he will certainly bypass Congress despite claiming to “consult” it. Making the decision unilaterally, outside the constitutional framework, will be the wrong call.

Ilya Somin cautions Obama against escalating unilaterally:

It is possible that the military action envisioned will indeed be so small-scale that no congressional authorization is required. But what if it turns out that very limited strikes and stepped-up assistance for Kurdish and Iraqi government forces are not enough to impede ISIS’ advance? In that event, any significant increase in US military involvement would require congressional authorization.

In addition to meeting constitutional requirements, congressional support could also give military intervention valuable political legitimacy and staying power. If the president goes in on his own, political support could evaporate quickly if anything goes wrong. Since he alone would bear the blame, congressional leaders – especially those from the opposition Republicans – would have every reason to hang him out to dry. For that reason, among others, it is generally better to enter a war only if there is a broad political consensus in favor of doing so, including both the president and Congress.

But Jack Goldsmith expects that Obama’s views on his constitutional prerogatives to fight Islamist terrorism are becoming more expansive, by dint of necessity:

Wanting to declare the statutory war against Islamist terrorists over, the administration has long maintained that the residual use of Article II in this context will be exceptional and limited.  Given the large and growing nature of the Islamist threat, not just in Syria and Iraq, but elsewhere, I do not see how the President can protect U.S. national security interests with exceptional and limited uses of force under Article II.  Put more simply, the threat is not limited, and neither can (or will) be our response.  The current crisis in Iraq might be a test of this view, and of whether the Congress and the nation are comfortable with a President using force in its name under the broad, unilaterally determined parameters of self-defense, or whether it wants more formal and defined input and guidance and limitations from the legislature.

(Photo: Thousands of Yazidi and Christian people flee Hamdaniyah town of Mosul to Erbil after the latest wave of ISIL advances that began on Sunday has seen a number of towns near Iraq’s second largest city Mosul fall to the militants on August 6, 2014. By Mustafa Kerim/Anadolu Agency/Getty Images.)