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Congress must limit Obama's military adventures: Column

President Obama has had plenty of time to get authorization to fight Islamic State.

Chris Edelson
President Obama delivers his 6th State of the Union address before a joint session of Congress in Washington, DC, USA. Congress must preserve constitutional limits on the president's power by narrowing his authorization of force request.

The old philosophical question — if a tree falls in the forest and no one's there to hear it, does it make a sound? — can be applied to the debate over the use of military force against ISIS that started to heat up in Congress last week. If the president violates the Constitution and no one does anything about it, are constitutional limits on presidential power meaningful?

President Obama unilaterally began U.S. military action seven months ago. He claims such action was constitutionally appropriate because "existing statutes provide[d] me with the authority I need[ed] to take these actions." That claim is implausible.

The two statutes that might provide support for this action have nothing to do with ISIL. One was passed days after the 9/11 attacks and provides authority for military action against al-Qaeda and the Taliban. But ISIL is a separate group from al-Qaeda. ISIL did not even exist on 9/11 ), and "is in a public feud with al Qa[e]da's leadership..." The 2001 Authorization for the Use of Military Force (AUMF) cannot apply to ISIL. The other statute, a 2002 authorization passed to justify war against the Saddam Hussein regime in Iraq, also cannot plausibly be applied to justify military action against ISIL.

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Since the ongoing military action against ISIL lacks statutory authorization, it is illegitimate. Under the Constitution, the president may only unilaterally order military action in an emergency situation, for instance to respond to an attack against the U.S. when there is no time to consult with Congress. Although ISIL certainly resembles something out of a nightmare, this emergency situation (fortunately) does not exist. The U.S. is not under attack, and although Americans have been murdered by ISIL, there is no emergency situation that made it impossible for the president to consult with Congress at some point over the past seven months.

President Obama has now presented Congress with a draft AUMF to authorize military action against ISIS. Critics, including some members of Congress, have rightly noted that the draft AUMF is full of ambiguities and loopholes allowing for unrestrained presidential action. For instance, the draft AUMF would prohibit "enduring offensive ground combat operations..." What exactly does "enduring" mean? Of course, no one can say with certainty. And what if the president decided that ongoing combat operations could be defined as "defensive" and therefore outside the AUMF's ban on offensive operations? The authorization would terminate after three years, which provides some temporal end point, but even this limit may not be very meaningful. Three years is a long time, and, in any event, since the administration believes it already has authority to act against ISIL, the next administration might reach the same conclusion and feel free to continue military operations against ISIS even after proposed AUMF expired.

This gets to the central problem, which does not seem to be part of the current debate over military action against ISIL. Although the president claims otherwise, the military action he began against ISIL seven months ago was not legally authorized. The president acted, and is acting, beyond his constitutional capacity. I am not suggesting this is an impeachable offense. There is no crime involved. These actions were taken publicly, in the open. A functioning Congress would have stopped this immediately by using the considerable powers at its disposal to block unilateral presidential action. But Congress has done nothing, and its passive acquiescence has emboldened this administration to believe that gaining statutory authorization is optional. Last month, White House press secretary Josh Earnest dismissed the idea that congressional approval of the draft AUMF is legally necessary, and explained that the president is seeking congressional authorization simply as a way for legislators to "demonstrate their support" for what the president has already decided to do.

It is essential for Congress to insist on its relevance to the debate. The Obama administration is wrong. Congressional authorization is not optional, it is essential —and no existing statute authorizes military action against ISIL. If Congress does decide that some military action against ISIL is necessary and advisable, it will not be enough for it to pass some version of the legislation the president has proposed. It will have to make clear that the president's actions to date lacked legal authority, and that seeking approval from Congress is mandatory, not a matter of convenience or choice.

Chris Edelson, assistant professor of government in American University's School of Public Affairs, is the author ofEmergency Presidential Power: From the Drafting of the Constitution to the War on Terror,

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