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By Miriam Raftery

Photo: U.S. Department of Defense

September 23, 2014 (Washington D.C.)—The U.S. Constitution states that Congress has the power to declare war.  Yet Congress has not provided such declaration to presidents for any war since World War II, back in the 1940s.  That puts presidents in the hot seat when confronting threats including those from terrorist groups such as Al Qaeda and now, ISIL, or the Islamic State.

President Obama has authorized air strikes against ISIL in Iraq and Syria.  That action has drawn criticism from some legal scholars but others have contended the President’s unilateral actions are legal. So what are the arguments on both sides?

Perhaps the strongest argument in favor has been put forth by Michael Ramsey at the University of San Diego School of Law. Ramsey contends that the President does not need Congressional approval to launch military strikes in self defense against an enemy such as ISIL that has effectively issued a declaration of war against the United States by threatening military hostilities; ISIL has also executed American hostages.

But critics contend that the founding fathers only intended the clause to apply to an official nation state, not a terrorist group spread across international borders.

Congress made efforts to reign in presidential powers after the Kennedy, Johnson and Nixon administrations committed the U.S. to a decade of full-scale war in Viet Nam without Congressional approval. In 1973, Congress passed the War Powers Resolution.  It required the President to notify Congress within 48 hours of committing troops and to withdraw them after 60 days if Congress fails to grant an extension. 

The War Powers Resolution was intended to make it harder for a president to wage war. But after the 9/11 terrorist attacks on U.S. soil killed thousands of Americans, Congress passed the Use of Military Force Against Terrorists Resolution in 2001.

John Yoo, who served as Deputy Assistant Attorney General under George W. Bush, defends the actions of both Bush and Obama. He has contended that the Constitution does not restrict a president’s ability to engage troops in fighting, only to officially declare war.  If that logic seems convoluted, Yoo further argues that Obama already has Congressional authorization under the 2001 Authorization for the Use of Military Force.

But Ilya Somin, a law professor at George Mason University, points out that the 2001 Act only authorized force against those who plotted, supported or carried out the 911 attacks.  ISIL was not in existence back then.

Presidents have tried to claim emergency powers in the past and the Supreme Court has routinely struck them down. Among the presidential acts found unconstitutional by the high court were Franklin Roosevelt’s internment of Japanese Americans during World War II and Harry Truman’s seizure of steel mills during the Korean War, as well as Abraham Lincoln’s suspension of the writ of habeus corpus; the writ assures that those detained shall have the right to seek relief from unlawful imprisonment; the Constitution provides that it may not be suspended except when in cases of rebellion or invasion, public safety requires it. But the Chief Justice ruled that not even Civil War was sufficient cause to wave the rights of an American official detained. Thus it remains highly questionable whether the high court would find that unilateral military intervention without consent of Congress passes constitutional muster.

Yet even some critics of the President’s executive actions have offered grudging approval of the need to wage war against ISIL.

Somin concludes, “In this case, I think President Obama is right to target ISIS. But his actions are a dangerous precedent for the future,” the constitutional scholar adds. He concludes that in general, “It is best to have a broad consensus before embarking on war. The constitutional requirement of congressional authorization helps ensure that.”


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