After fits and starts of intermingled hope and despair, America is back in the Middle East. President Obama has made his case to America, the United Nations and the world that airstrikes against the Islamic State of Iraq and Syria (ISIS) are both justified and necessary. For those who doubted Obama’s ability to make tough foreign policy decisions, there is now proof that Obama will act when he feels the situation makes action possible. And now, with the decision recorded and targets in sight, it is time for Obama to face the music.
The President’s decision to attack ISIS has been, to say the least, controversial. And for those who oppose his decision, their appeals will most likely be made through Congress. But why has Congress been silent?
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Constitutionally, only Congress has the power to declare war; that much is obvious. But President Obama’s battle against ISIS is essentially a police action, like the Korean War, and it doesn’t actually require a declaration of war.
That raises the question: What defines a “police action?” What defines a “war?” Semantics, perhaps, especially since nobody would seriously argue that the Korean War wasn’t actually a “war.” But in the modern framework of international diplomacy, we normally expect wars to be fought between states, and ISIS isn’t a traditional sovereign state on which war can be declared. Rhetoric aside, can you really declare war on terrorism? Al-Qaeda and its ilk are organizations, not countries. But on the other hand, does anybody actually know what the limitations of a police action really are? That’s the tricky part.
That ambiguity is also a police action’s chief selling point. While I can understand man’s inherent desire for clarity, in this case clarity is expressly not the point. Police actions are useful because they are not, constitutionally speaking, wars.
In the end, it all comes down to politics. With midterm elections looming, a vote for armed action is a vote that many members of Congress would not find it politically expedient to cast. Politically, police actions have the benefit of avoiding a Congressional measure that, although in this case unpopular, Congress would almost certainly pass (the UK House of Commons passed a similar vote by a large margin). In the end, while some members of Congress have publicly expressed their outrage over America’s return to the Middle East, Congress’ ultimate silence speaks volumes about Obama’s freedom to act.
In fact, regardless of whether you support or condemn this return to the Middle East, please remember this: Congress’ silence has essentially amounted to assent.
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Assent through silence? you may ask. There is indeed such a thing – mainly because although nobody is quite sure how far Congress’ authority over military force extends, it’s not as if Congress has bothered to raise the question.
I’ve heard a fair bit of talk recently about using the War Powers Resolution (WPR) to stop airstrikes from happening. The Resolution, passed during the Vietnam War, mandates that all military actions lasting longer than 60 days need authorization from Congress. However, the constitutionality of the WPR is a controversial topic, and no President has ever formally accepted it.
Of course, Presidents still want to legitimize their actions in as many ways as possible, and while Obama may not take the WPR seriously, he also doesn’t want to invite a lawsuit from Congress. Obama argued that he has license to launch airstrikes in the Middle East because of the Iraq and Afghanistan war authorizations that Congress passed a decade ago. Obviously, that stretches the truth, to put it gently. But Obama can pull it off.
People who complain about Obama’s “illegal war” are missing the point. More than sixty years after Korea, police actions are still uncharted territory, and nobody with the power to make decisions – not the President, not Congress and not (at least officially) the Supreme Court – knows whether this round of airstrikes is legal or not. But the absence of action – the conscious decision to do nothing – is like an action in and of itself, and Congress hasn’t been nearly as assertive as it could have been. For most Presidents, that is legality enough.
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Congress’ silence is not just a decision – it is a precedent and a principle. When an institution has the power to stop something from happening, inaction equates to permission. And Congress does have the power to stop President Obama from launching airstrikes. It just doesn’t want to.
President Clinton ignored the War Powers Resolution during the Kosovo crisis, continuing his bombing campaign for two weeks longer than the 60-day limit. A minority of Congress duly challenged Clinton in court, but the result (Campbell v. Clinton) was a masterwork of ambiguity on the part of the federal judiciary. Without actually ruling on whether the WPR was constitutional or not, the D.C. Circuit Court of Appeals pointed out that Congress already had the authority to stop the bombing campaign by cutting off funding, and threw the case out of court. The past has made its judgment: This is as much Congress’ fight as it is Barack Obama’s.
So far, neither Congress nor President Obama has overstepped these ambiguous boundaries. Congress has the power of the purse, but it has not cut the funding for Obama’s airstrikes against ISIS. (For those of you who don’t believe that Congress can cut off funding to a specific project, just look at all of the politicians out there planning to “defund Obamacare.”) American armies have not returned to Iraq; just as importantly, even though many Americans oppose any armed intervention, the mood of the public seems to have accepted Obama’s plan. Consider this: The backlash over proposed airstrikes in Syria convinced Obama to back down from a red line that he himself had drawn just days before. Compared to Syria, this latest debate has been close to nonexistent. And barring an armed invasion of ISIS territory or a fiasco of epic proportions, it looks like things will stay that way.
Two points to make, then. First, ISIS is a difficult enemy to fight, and we don’t know if airstrikes will do the trick. Second, whether Obama’s actions have set a tricky precedent is a question that everybody should be thinking about, but from filibusters to judicial review, American history is a long line of tricky precedents. If people call this new round of airstrikes a constitutional crisis, they lose sight of the fact that we have, for all intents and purposes, always been in one.
Contact Winston Shi at wshi94 ‘at’ stanford.edu.