New York Times: Congress's Inaction Could Be Legal Basis for Stronger Executive War Powers

Charlie Savage reports on Congress's inaction on military authorization against ISIL.

As lawmakers grapple with President Obama’s claim that he already has congressional authorization for airstrikes against the Islamic State, legal specialists are saying that even legislative inaction could create a precedent leaving the executive branch with greater war-making powers.

Last week, the Obama administration asserted that a military campaign in Syria and Iraq against the Islamic State, also known as ISIS or ISIL, is covered by the existing 2001 authorization to use force against Al Qaeda and the 2002 approval of the Iraq War. But he said he needed new legislative authority for the related mission of providing military training for moderate rebels in Syria.

Still, the Obama administration’s broad claims, and the fact that “Congress has done nothing to push back,” may become a precedent that the executive branch could use for future interpretations of statutory authorizations to use military force, said Jack Goldsmith, a Harvard Law School professor and former Justice Department official.

A related issue runs through various bills introduced by members of Congress that would provide explicit authority to fight the Islamic State. There appears to be little political appetite among congressional leaders to vote on the issue before the midterm elections in November, but several congressional staff members said such a bill may be taken up in the lame-duck session at the end of the year.

Several Democrats have introduced bills to permit a more limited air war, including Senator Bill Nelson, of Florida, whose law would expire after three years; Representative Adam Schiff of California, 18 months; and Senator Tim Kaine of Virginia, one year. Those bills explicitly say they do not include authority for any major use of ground troops, and the last two restrict the geographical scope of authorizing fighting to Iraq and Syria.

But Mr. Goldsmith wrote in a blog post that such limits are “entirely ineffective” because they would not prevent the executive branch from evading them by citing the 2001 law as separate authority.

In an interview, Mr. Schiff questioned the legitimacy of relying on the old Al Qaeda law to get around the limits of a new one that focuses on the Islamic State, but said his bill could easily be adjusted to foreclose that.

He also said that after the election, Congress should repeal the 2001 and 2002 authorizations and enact a new law that sets out the scope and limits of authority to go after Al Qaeda and the Islamic State.

To read the full article, please click here.

By:  Charlie Savage
Source: New York Times