Bombing ISIS: A New Imperial Presidency?

“The Constitution,” the eminent political scientist Edward Corwin famously declared, “is an invitation to struggle for the privilege of directing American foreign policy.” I was reminded of Corwin’s assessment when reading Yale law professor Bruce Ackerman’s recent New York Times op ed piece, in which Ackerman castigates President Obama’s justification for his decision to  initiate military action designed to “degrade and destroy” the Islamic State (ISIS). For Ackerman, Obama’s willingness to authorize air strikes without congressional approval smacks of “imperial hubris”, and “marks a decisive break in the American constitutional tradition.”

It does nothing of the sort, of course. To be sure, Ackerman makes a compelling case that the Obama administration’s use of the 2001 Authorization for Use of Military Force (AUMF) as the basis for taking military action against ISIS (and more recently against the Khorasan terrorist group as well) stretches credulity. The 2001 AUMF, you will recall, is the joint resolution passed by Congress in the aftermath of the 2001 terrorist attacks that authorized “the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.” As Ackerman persuasively argues, “[I]t’s preposterous to suggest that a congressional vote 13 years ago can be used to legalize new bombings in Syria and additional (noncombat) forces in Iraq…. Not only was ISIS created long after 2001, but Al Qaeda publicly disavowed it earlier this year. It is Al Qaeda’s competitor, not its affiliate.” Presumably Ackerman would also dismiss administration attempts to utilize the 2002 joint congressional resolution that authorized the president 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” as an additional justification for bombing ISIS.

But Ackerman’s legal objections miss the point. The question is not whether a close textual reading of the 2001 or 2002 congressional resolutions support their use as the legal basis for airstrikes against ISIS – it is whether the Obama administration has the political support to make the case that they do. In short, the debate is over whether the public, as channeled through their elected representatives, supports Obama’s course of action – bombing ISIS – and not as Ackerman would have it, over Obama’s justification for his course of action. And this is exactly Corwin’s point. In a constitutional system in which foreign policy powers are shared, the relative effective influence exercised by the President and Congress in the foreign policy domain depends on how well each can enlist public support, as channeled through elected officials, for their preferred course of action. The Constitution, and subsequent statutes, only sets the parameters of this debate – it doesn’t determine the winner. This is why the Courts historically have refused to adjudicate conflicts between the two branches regarding the extent of the President’s war making powers, and why the War Powers resolution – beyond its notification requirements – has been of little help in resolving these disputes. Historically, Congress and presidents have differed over when, and whether, the War Powers resolution is applicable but neither side has so far been willing to precipitate a constitutional crisis by pushing their interpretation to the limit.

In determining who has the stronger case, then, regarding whether Obama can unilaterally authorize bombing ISIS, we would do well to spend less time parsing the wording of the Constitution and related texts, and focus instead on the politics of the matter. And politically, at this point, the evidence suggests that Obama’s interpretation will prevail – at least for now. This is because in the wake of the highly-publicized beheadings by ISIS of journalists, opinion polls show broad public support among Democrats, Republicans and Independents for targeted air strikes against ISIS in Iraq and Syria. Given prevailing public opinion, it is unlikely that many members of Congress who are facing midterm elections in November are going to want an immediate debate regarding Obama’s authority to conduct airstrikes. Indeed, most Republicans who object to Obama’s strategy do so not because they oppose air strikes, but because they believe air strikes alone are not likely to achieve Obama’s stated objectives. Yes, there is some background grumbling among legislators regarding Obama’s willingness to act alone, but that grumbling is likely to remain muted until the results of the midterms are known.

At that point, however, if Republicans regain control of the Senate in November, and pad their current House majority, I have little doubt that they will use those political gains as leverage in order to force Obama to seek congressional support for continued military action – particularly if air strikes alone have not achieved their objectives. However, current polling suggests that any post-midterm Republican efforts to push Obama to widen U.S. involvement, including introducing “boots on the ground” against ISIS – an action that, so far, Obama has vowed not to take – may lack public backing. This may set up an interesting public debate regarding how much military involvement the public is willing to support in order to achieve Obama’s stated military objective of defeating ISIS.  Again, that debate is likely to turn on the politics of the issues – not legal interpretations of the President’s war-making authority.

My broader point is that too often pundits, and some of my political science colleagues as well, view unilateral presidential action as evidence of presidential imperialism or an imbalance of constitutional and statutory powers, when in truth it reflects congressional acquiescence, or even tacit support, for the president’s actions. Typically Congress does not acquiesce because its members have been cowed, or lack the requisite political authority to block the President. Members acquiesce because they think the President has the better argument, politically speaking. Moreover, despite all the talk about his predecessor’s allegedly imperial conduct, the fact is that George W. Bush sought, and received, congressional authorization for both the wars he initiated in Iraq and in Afghanistan.

Rather than “a devastating setback for our constitutional order”, as Ackerman claims, Obama’s decision to move forward with military strikes while asking for Congressional support is in perfect keeping with our system of shared powers, and it reaffirms Corwin’s basic point. The Constitution is the supreme law of the land, but when it comes to foreign policy the interpretation of that law is ultimately determined not by a close parsing of the constitutional text, or related statute, but by the effort of elected representatives to muster public support for their preferred foreign policy objective. In that ongoing struggle, the President, as a single actor, has certain advantages, including the ability, as Hamilton noted long ago, to act with “secrecy and despatch”. But history shows that Congress, if it musters the political will, has more than enough powers to bring any president to heel. Whether it will do so in this case depends in large part on what legislators hear from voters come November.