Obama’s Iraq Strikes And Executive Power, Ctd

by Dish Staff

Republicans are making somewhat incoherent political hay out of Obama’s decision to carry out air strikes on ISIS targets in Iraq, arguing on the one hand that his objectives are too broad and on the other that they’re too narrow. But on the third hand – and you don’t read this very often on the Dish – Ted Cruz has a point here:

Cruz said he does not believe the 2002 Authorization for Use of Military Force in Iraq or the War Power Act provide Obama the authority to continue airstrikes against ISIS. “I believe initiating new military hostilities in a sustained basis in Iraq obligates the president to go back to Congress and to make the case and to seek congressional authorization,” Cruz said. “I hope that if he intends to continue this that he does that.”

As Yishai Schwartz points out, however, the administration doesn’t think it has authority to re-intervene in Iraq under the AUMF either. Instead, as Jack Goldsmith observed last week, they appear to be claiming a constitutional power to do so. In Schwartz’s view, this is extremely dangerous:

The problem, however, with relying on the Constitution alone is that this constitutional power is vague and open-ended. What exactly can’t the president order under his authority as commander-in-chief?

Especially after the Bush presidency’s extreme claims of executive war powers, Obama and many of his legal advisors are wary of relying on this vague and unrestricted constitutional power. If anything, they would like to see it clearly limited and defined. So the administration is caught in a dilemma: as Islamists butcher minorities in Iraq, it sees a moral and humanitarian imperative to act. But without specific congressional permission, a purely humanitarian intervention would set a virtually open-ended precedent for an American president to act militarily anytime, anywhere.

Furthermore, Ilya Somin doesn’t buy the argument that the need for immediate action hindered Obama from seeking Congressional approval for the intervention:

[T]his case – like the 2011 Libya intervention – is not a situation where a crisis developed so quickly that the president had no time to seek congressional authorization for the use of force. ISIS has been gaining ground against Iraqi government and Kurdish forces for many weeks, and its murderous and genocidal intentions have also been clear for a long time. President Obama had plenty of time to seek congressional authorization during that period. To be sure, some specific aspects of the tactical situation have only emerged recently, such as ISIS’ siege of thousands of Yazidi civilians on a mountaintop. But the possibility that ISIS would threaten large numbers of civilians in a position where local forces could not save them was readily foreseeable long before then.

He’s also deeply skeptical of the notion that air strikes don’t count as “war”:

To be sure, Obama also assures us that he will not deploy US ground forces against ISIS. During the 2011 Libya conflict, the administration argued that an intervention limited to air strikes alone does not require congressional authorization under the War Powers Act of 1973 if it does not “involve sustained fighting or active exchanges of fire with hostile forces.” Similar reasoning can be used to claim that such air strikes do not qualify as a “war” that requires congressional authorization under Article I of the Constitution. But such strained arguments did not pass the laugh test in 2011, and have not improved with age since then. The use of airpower in a “long-term campaign” clearly qualifies as warfare under any reasonable definition of the term.

P.M. Carpenter, on the other hand, wonders whether Obama promised a long-term campaign at all:

Perhaps my reception of Obama’s words was wildly imperfect, but what I heard in “we’re [not] going to solve this problem in weeks; this is going to be a long-term project” was this: untangling the political mess created by Maliki and his sectarian brutes is likely to span months. Not our military involvement, but rather the mess itself is the “long-term project.”  A months-long U.S. air campaign increases almost exponentially the odds of a downed, captive pilot, and I can’t see President Obama taking that risk.