President Obama says that he has authority to act against ISIS because of the
War Powers Act and the congressional authorization for the Iraq War.
Andrew Rudelevige writes at The Washington Post that neither rationale holds up.
First, the Obama administration has not actually filed any reports under the War Powers Act (or rather Resolution — thus, the “WPR”). The president has indeed sent a number of letters to Congress about the Islamic State and Iraq since June — the latest such is dated September 8 — but these are simply to keep Congress “fully informed.” Doing so is “consistent with the War Powers Resolution” (my emphasis) — but the president never says he is reporting “pursuant to” the WPR, as a consequence of that statute, as required by section 4(a)(1). The “consistent with” is boilerplate language that far predates Obama — presidents have rarely admitted that the WPR is binding or even constitutional — but the letters do not concede that the WPR limits his authority in any way. Indeed, in each letter Obama claims that he is acting “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”
...
How about the authorization to use force in Iraq (P.L. 107-243), passed nearly 12 years ago? Is that a “specific statutory authorization” for the present circumstance? Had the Bush administration’s preferred text been adopted in 2002, Congress would have given the president power “to use all means” to “restore international peace and security in the region,” i.e., the entire Middle East, and Obama would have a great case. But the actual resolution states:
The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to --
(1) defend the national security of the United States
against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council
resolutions regarding Iraq.
Thus the authorization is for the use of force against (the state of) Iraq, rather than in Iraq. The Security Council resolutions referred to deal with weapons of mass destruction; with “repression of its civilian population”; and with “threatening its neighbors.” The Islamic State may be doing some of these things, but Iraq itself is not; indeed, the threat to the United States from Iraq’s government seems to be from the latter’s incompetence. Potential attacks within Syria’s borders seem even more removed from the authorization’s intent.
