Clay Hanna, a veteran, pleads with Obama to get congressional authorization for his new war:
If Congress declares war, and the full force and might of the U.S. military and her allies is deployed, I have no doubt that we will fatally strike the Islamic State.
But without this clarity, without “boots on the ground” and above all an acknowledgement of what these really are, the president’s strategy amounts to nothing more than amorphous rhetoric and disingenuous platitudes. It is at the core a cynical plan to incite war and fund violence, backed by a vague hope that not only will we remain unaffected but somehow we will achieve peace. Don’t deceive yourself or us any longer, Mr. President: There is no good war and no participant gets to walk away with clean hands. Not even you.
Beutler believes Congress wants war but doesn’t want to authorize a war, because “voting on the issue would violate the Optimal Preening Principle, which tends to govern these debates”:
Killing terrorists, or alleged terrorists, might be popular. But it’s also something the military (and thus, the president) does. Meanwhile, on a good day, Congress votes on legislation. The president might use a new AUMF to do things the public overwhelmingly supports, but that won’t help the embattled congressperson who would have to defend granting the president unlimited warmaking power or defend voting against bombing terrorists because the AUMF wasn’t expansive enough. Instead, by not being forced to take a stance, Obama’s opponents will be able to frame the issue however they want to.
Likewise, when something goes wrong—as it inevitably will—members of Congress won’t want to be linked to it with their votes, and won’t want their votes constraining them from harrumphing about it on camera. Constituents won’t credit them if things go swimmingly anyhow, so they see no upside in sticking their necks out.
Bruce Ackerman chews out Congress for neglecting its duties:
Neither the Justice Department’s Office of Legal Counsel nor the White House Counsel has issued a serious legal opinion presenting its side of the argument. This represents a profound breach of the rule of law. Worse yet, Congress’ failure to address the constitutional issues during its regular session threatens to create a legal vacuum which only the courts will be in a position to resolve. Unless extraordinary steps are taken, the result will be the worst of all possible worlds, in which a problematic Supreme Court decision only exacerbates the ongoing crisis of constitutional legitimacy.
Eric Posner disagrees with Ackerman’s legal analysis:
Ackerman is right that the Obama administration’s reliance on the 2001 AUMF is phony, but he’s wrong to say that Obama has broken with American constitutional traditions. That tradition dictates that the president must give a nod to Congress if he can, but otherwise he is legally free to go to war, subject to vague limits that have never been worked out. That’s not to say that Congress is helpless. It can refuse to fund a war if it objects to it. But the real constraint on the president’s war-making powers is not law, but politics.
Regardless, Jennifer Daskal, Ashley Deeks and Ryan Goodman urge Congress to get involved:
[T]he administration again appears to be invoking the 2001 and 2002 AUMFs – a position that two of us have been critical of in the past. We thus join President Obama in his call to Congress to put the actions on sounder domestic law footing, and pass a new authorization specifically focused on ISIL, and, depending on the facts, the Khorasan Group as well.