Citing Bruce Ackerman, Sen. Rand Paul argues that the war against ISIS is illegal.
Yale Professor Bruce Ackerman puts it succinctly: “The war against the Islamic State is now illegal. The War Powers Resolution of 1973 gave President Obama 60 days to gain consent from Congress and required him to end ‘hostilities’ within 30 days if he failed to do so. This 90-day clock expired this week.” And yet, there’s been no consent, and no end to the fighting.
I believe the president must come to Congress to begin a war. I also believe the War Powers Act is misunderstood; President Obama acted without true constitutional authority even before the 90 days expired, since we were not under attack at that time.
But in either case, this war is now illegal. It must be declared and made valid, or it must be ended.
Congress has a duty to act, one way or the other.
But perhaps more importantly, he seeks consistency with respect to the rule of law when Republicans and Democrats approach the executive powers.
Conservatives have rightly decried President Obama’s unconstitutional executive action on Obamacare—and his promises to do the same with immigration. With both branches of Congress now under Republican control, we should act to halt those power grabs, too.
But conservatives can’t simply be angry at the president’s lawlessness when they disagree with his policies. They should end their conspicuous silence about the president’s usurpation of Congress’ sole authority to declare war—even if (especially if) they support going after ISIS, as I do.
This is important. We can’t be for the rule of law at our own convenience. It matters how we act both when we agree and when we disagree with the president.
Conservatives who blast the president for ignoring the separation of powers on immigration display a fatal inconsistency by embracing unlimited war-making powers.
Paul, in calling John Yoo an apologist, blasts those who favor unlimited presidential war powers:
Conservatives should realize, though, what unfettered presidential power means. Proponents of this theory argue that congressional laws cannot limit the president’s power to perform warrantless searches, carry out wiretaps, detain perceived enemies of the state, or even torture people—not just of enemy soldiers, but American citizens not engaged in combat.
Apologists for unlimited presidential war power, like former Bush administration official John Yoo, claim that no law “can place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” Yoo further argues for unchecked executive power by claiming that the explicit constitutional power for Congress to declare war is really not a check at all. In a remarkable work of double-speak, Yoo writes that the Declare War Clause does not grant Congress any power to initiate war, but only the “judicial power” to recognize whether “the nation was [already] in a legal state of war” for purposes of “domestic” law.
And for good measure, Paul gets a serious dig in at John Kerry, who in case you didn’t know served in Vietnam:
Secretary of State Kerry became famous as an anti-war liberal decades ago, when he asked Congress “who will be the last to die for a mistake.”
That same man is now probably the most visible liberal proponent of unlimited war-making powers, as a member of this administration.
When I asked him at a Senate Foreign Relations Committee hearing how on God’s green Earth a resolution to use force against the perpetrators of 9/11 in Afghanistan could be construed to apply to the Islamic State in Iraq in 2014, he replied that it didn’t matter. The president could justify basically any war making as an “Article II” power. …
This argument is vital to a larger argument: Do we obey the rules set up to constrain government or not? Do we survive as a constitutional republic, or not?
Prominent Republicans from the interventionist wing of the party parrot and applaud Kerry’s position. If ever there was too much bipartisanship, it would be the bipartisan acceptance of unlimited presidential war-making power.
This is not George W. Bush’s Republican party.