Go To Congress, Mr. President, Ctd

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Aaron Blake passes along the results of a new CBS News poll showing that 62 percent of Americans think the ongoing campaign against ISIS in Syria requires congressional authorization. But that doesn’t mean it will happen:

Similarly, 80 percent think member of Congress should desert the campaign trail, come back to Washington, and debate the use of force against the Islamic State. Those are pretty strong numbers. But it’s highly unlikely they’ll force any kind of action.

That’s because, however many Americans feel Congress should approve military action, very few of them are speaking out against the decision to go into Iraq and Syria without congressional approval. To be sure, Americans would like for their duly elected representatives to sign off, but they’re not exactly incensed that Congress hasn’t been asked. And people largely approve of what they’ve seen so far, as far as the airstrikes go.

The latest Reason-Rupe poll turns up a similar result, with 78 percent saying Congress should return to Washington to vote on this war:

Fully 63 percent of Americans say members of Congress haven’t voted on the authorization of military force because they don’t want to put their vote on the official record. Only 15 percent of Americans think Congress hasn’t voted because it believes President Obama does not need their authorization for military action, and 8 percent felt Congress simply hasn’t had enough time yet to hold the vote. This is a rare non-partisan issue in which overwhelming majorities of Democrats (77%), Independents (78%), and Republicans (83%) feel Congress should weigh in on this important decision.

Noting that Obama’s 60 days are up, Jack Goldsmith infers that the White House’s shifting legal basis for the operation is meant to avoid a Congressional vote:

Section 5(b) of the [War Powers Resolution (WPR)] requires the President to “terminate any use of United States Armed Forces” 60 days after he introduces such forces into “hostilities” unless Congress “has enacted a specific authorization for such use of United States Armed Forces.”  Senator Cruz is thus right that the WPR requires the President to seek new congressional authorization from Congress unless the 2001 and 2002 [Authorizations For Use of Military Force (AUMFs)] are specific authorization” for the airstrikes against the Islamic State. Recall that the President originally (in August and September) relied on Article II alone as a basis for the strikes against IS.  He then switched about a month ago to say that the strikes are also based on the 2001 and 2002 AUMFs.  The switch in legal rationales has enormous significance for – and in my judgment was likely motivated by – compliance with the WPR.  For if the AUMFs are a proper basis for the strikes against the Islamic State, then there is no issue under the WPR because Congress has authorized the conflict.  Only if the President is wrong about the applicability of the AUMFs to the Islamic State is there a problem under the WPR.