Obama on His Unauthorized War Against ISIS: I'm Not Hearing 'No'

The administration argues that Congress has implicitly consented to new military operations in Iraq and Syria.


U.S. Army

Responding to a lawsuit arguing that the U.S. war against ISIS is illegal because Congress never authorized it, the Obama administration argues that Congress kinda-sorta did, since it appropriated money that is being used to fight the terrorist organization. The administration's brief, filed on Monday, cites $5.6 billion that Congress approved in December 2014 for "overseas contingency operations to counter ISIL" (another name for ISIS), language in the National Defense Authorization Act (NDAA) for fiscal year 2015 that authorized the Defense Department to help Iraqi security forces defend their country against "the threat posed by [ISIS]," a 2016 appropriations measure approving "additional funding…to conduct counter-ISIL operations," and the NDAA for fiscal year 2016, which expressed  "the sense of the Congress" that ISIS "poses an acute threat to the people and territorial integrity of Iraq" and that "defeating ISIL is critical to maintaining a unified Iraq." 

None of these measures explicitly authorized the U.S. war against ISIS, and each of the appropriations bills warned that "none of the funds made available by this Act may be used in contravention of the War Powers Resolution," which requires the president to get congressional permission within 60 days of introducing U.S. forces into hostilities or, failing that, withdraw them within 90 days. That law says Congress may not authorize military operations through an appropriations measure unless it "states that it is intended to constitute specific statutory authorization."

The lawsuit to which the administration is responding was brought by Nathan Michael Smith, an Army captain who works at the Kuwait headquarters of the combined joint task force overseeing the forces fighting ISIS in Iraq and Syria. He is seeking clarification of the war's legal status, arguing that participating in an unauthorized war would violate his oath to uphold the Constitution. Smith notes that President Obama has blatantly failed to meet the requirements of the War Powers Resolution, and he rejects the administration's implausible contention that the war against ISIS is covered either by the 2001 Authorization for the Use of Military Force (AUMF) against the perpetrators of the 9/11 attacks, which was approved before ISIS existed and which Obama himself describes as dangerously obsolete, or the 2002 AUMF in connection with the Iraq war, which Obama declared over in July 2014 and which in any event never involved military action in Syria.

The administration argues in a footnote of its brief seeking dimissal of Smith's lawsuit that the provision of the War Powers Resolution requiring explicit authorization of military deployments is unconstitutional because one Congress cannot bind a subsequent Congress. But the Constitution can, and the War Powers Resolution is aimed at preventing the president from rendering meaningless the power "to declare war," which the Constitution unambiguously assigns to Congress. If presidents were free to use military force around the world at their sole discretion, there would be no need for such declarations.

Still, the pieces of legislation cited by the administration show that congressional capitulation has combined with presidential presumption to make the war power all but irrelevant. Members of Congress, who could authorize the war against ISIS if they think it's a good idea or defund it if they don't, have chosen to do neither. They prefer to have it both ways, avoiding the blame for failing to confront ISIS while disowning responsibility for a war that may go terribly wrong. While Obama never got permission for his war, the administration notes, "Congress has not enacted legislation, or even passed a resolution, indicating its opposition to the President's military actions against ISIL." That leaves soldiers like Smith to choose between obeying orders or obeying a Constitution that commands respect on Capitol Hill only when it's convenient.