Don Robinson: Our Constitution — and a president’s war against ISIS



Last modified: Friday, September 26, 2014

ASHFIELD — Among reasons for President Obama’s declining approval numbers, his abuse of the Constitution’s war powers does not loom large. But as we head back into war in Iraq and environs, it behooves us to pay attention to this tattered part of our constitutional fabric.

Obama had taught constitutional law at the University of Chicago. As a senator he had been a sharp critic of President George W. Bush’s high-handed performance as commander-in-chief. Many hoped he would try to steer the republic back toward sound constitutional practices.

What is the constitutional standard for the use of the war powers? It is reasonably clear. Congress raises troops and pays for their equipment. Congress also has power to initiate military action (to “declare war”). Once war begins, the president is commander-in-chief. He determines when the purpose for which we went to war has been achieved and whether to accept the enemy’s surrender. He would also be the one to surrender, if it ever came to that.

The clauses in the Constitution seem straightforward enough, but they contain some ambiguities. For one, do all uses of American military forces abroad constitute “war”? Besides the five declared wars in our history, there have been scores of armed interventions, many of them in Latin America. By now, there is ample precedent for a president taking such actions without going to Congress for a formal declaration of war.

In the final analysis, however, the preservation of constitutional balance depends not on words in the Constitution, but on political checks and balances. As James Madison explained in The Federalist, each of the three branches must have the constitutional powers and political incentives to defend its proper role in the constitutional scheme.

Those who hoped and expected that Obama, in the wake of his predecessor’s abuses, would demonstrate how to conduct national security policy constitutionally have been disappointed. There have been bright spots. When he intervened in the civil war in Libya, he underestimated how long it would take and how much it would depend on U.S. air power, but at least he did consult with Congress before attacking. In the case of a plan to bomb Syria over the use of poison gas, he changed course when it became evident that Congress would not support it.

Now we are attacking ISIS in Iraq and Syria. The provocation is clear, though the prospects for success are not. After the brutal murders of American and British journalists, public opinion changed quickly and decisively. Such shifts in public passion are fickle, though, and the president is understandably hesitant to build his policy on public clamor.

The constitutional situation is muddled. In the first place, who exactly is the enemy? They call themselves the Islamic State, but Islamic authorities tell us that they are vicious criminals, not Islamic in any meaningful sense, and they are certainly not a “state.”

They are a formidable foe, but can you declare war on a terrorist movement?

In the run-up to war, Congress has been preoccupied with midterm elections. At the end of last week, both houses hastily passed legislation to authorize funds for the assault on ISIS, then left town to campaign for reelection.

Amidst these distractions there has been little time for deliberation. The capital’s wise men, among them pundits E. J. Dionne and David Brooks, and U.S. Rep. Steny Hoyer, minority leader of the House Democrats, have determined that it is best to wait until after the elections, then figure out what sort of legislative action is appropriate.

Sen. Tim Kaine, Democrat of Virginia, has lately emerged as a leader on this issue. He has offered a resolution that is short of a declaration of war, but would authorize military action against ISIS. Kaine’s resolution includes a sunset provision; it would require renewal after a stated period, perhaps a year. It would also be limited in scope. It would define, as carefully as possible in advance, the purposes of the American and allied assault. It would provide that Congressional leaders be kept informed of progress and be consulted on the need for changes in the authorizing resolution.

Some of this will doubtless be objected to on grounds that it interferes with the president’s constitutional role as commander-in-chief, once a military engagement begins. But Congress has a legitimate role to play here.

Requiring President Obama to share war powers with the likes of Senators McCain, McConnell and Cruz and Speaker Boehner and his cohorts in the House seems absurd. Each would rather be commander-in-chief than the person we voters have chosen. But that is what the Constitution requires, and for good reason. The nation’s military forces must not be at the disposal of any single person. If we give that up, we will have lost a core principle of constitutional democracy.

Don Robinson, a retired professor of government at Smith College, writes a regular column for the Gazette which appears on the fourth Thursday of the month. He can be emailed at drobinso@smith.edu.


 

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