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The chamber of the US House of Representatives... empty. (Photo: Getty)

"Humanitarian Emergency" Does Not Suspend the Constitution on War Powers

Robert Naiman

President Obama gave a speech last night purporting to justify today's U.S. military strikes in Iraq. Unfortunately, the President's speech failed to clearly answer key questions related to the issue of Congressional war powers under the U.S. Constitution and the War Powers Resolution; that is, he failed to clearly explain why his decision to order airstrikes in Iraq without Congressional authorization is Constitutional and legal.

These questions are crucial because regardless of what you think right now of the President's current military action - and the situation is still unfolding, and it is not at all clear right now what the limits, if any, of the President's action will be - Americans who want the U.S. to be using military force less frequently are engaged in a "long game" against the Presidency - not just this President, any President - about the Constitutional, legal, and political scope of the President for unilateral decisions on the use of force in the absence of an attack or imminent threat of attack on the U.S.

And every time the President - this President or any President - is allowed to "cut corners" on the Constitutional question of Congressional war powers, it sets a bad precedent for the future, eroding a key Constitutional, democratic speed bump against unnecessary wars of choice. And every time the President - this President or any other - succeeds in tearing a hole in the Constitutional and democratic fence that the Framers wisely constructed to try to impede the President - any President - from launching unnecessary wars of choice, it's a key responsibility of people who want choosing war to be as hard as it should be to try to rebuild the fence.

In the case of Libya 2011, the Administration tore a huge hole in the fence. In the case of Syria 2013, Congress substantially repaired and strengthened the fence. Now the Administration is again attacking the fence. Regardless of what you think about what has happened so far on the ground in Iraq, to preserve this key tool for preventing wars in the future, we need to defend the fence now.

The President said:

"And just as I consulted Congress on the decisions I made today, we will continue to do so going forward."

That is not what the Constitution and the War Powers Resolution require of the President on the decision to use military force in the absence of an attack or imminent threat of attack on the United States: he needs explicit Congressional authorization. The President, Members of Congress, and the media must be pressed to address explicitly what the President's Constitutional and legal authority is to order airstrikes in Iraq right now, if the U.S. is not attacked or under imminent threat of attack. If the President is claiming that the U.S. was under imminent threat of attack before today's airstrikes, he needs to publicly justify that claim.

The President said:

"In recent days, these terrorists have continued to move across Iraq..."

It seems that the Administration is trying to mislead the American people about the timeline of events in Iraq. The fundamental dynamics to which the Administration is now responding with military force are *not* days old. They are (at least) weeks old. In other words, if the Administration wanted Congressional authorization to use military force to respond to these dynamics, they could have asked for it while Congress was in session.

I strongly suspect that the Administration delayed this military action until Congress went on recess (and perhaps also until there was a ceasefire in Gaza, no doubt a reason that the Administration was pressing Israel for ceasefire, to clear the stage, to avoid conflation of the U.S. and Israeli military actions in the Arab world.)

But it's not like recess appointments. There is no provision in the Constitution for a "recess war."


  • The "emergency" bombing of Libya in 2011 took place during the Spring (Easter) Congressional recess.
  • The "emergency" push to bomb Syria in 2013 took place during the August Congressional recess.
  • And now the "emergency" bombing of Iraq in 2014 is taking place during the August Congressional recess.

What is the probability that this pattern of three "emergencies" purportedly requiring immediate military action just happened to occur randomly while Congress was on recess?

Administration officials must be pressed to say specifically what the Administration believes the Constitutional and legal justifications are for its military actions in Iraq right now, and what they believe are the Constitutional and legal limits of its military actions in Iraq right now, if any.

The House recently passed legislation sponsored by Rep. Jim McGovern requiring that the Administration seek and obtain specific statutory authorization before initiating "sustained combat" in Iraq. The Administration should be pressed to say whether its actions in Iraq will be constrained by the House vote. Members of the House who voted for the legislation - including Leader Pelosi - should be pressed to say whether they intend to press the Administration to stay outside of the four corners of "sustained combat," consistent with their vote.

More than 100 Members of the House recently signed a bipartisan letter led by California Democrat Barbara Lee and Virginia Republican Scott Rigell insisting that the President come to Congress before using military force in Iraq.

The letter said [my emphasis]:

"As you consider options for U.S. intervention, we write to urge respect for the constitutional requirements for using force abroad. The Constitution vests in Congress the power and responsibility to authorize offensive military action abroad. The use of military force in Iraq is something the Congress should fully debate and authorize."

Administration officials should be asked why they ignored this letter. Signers of the letter (in particular) should be pressed to say whether they believe the Administration's current actions are Constitutional and legal, and if so, what they believe the Constitutional and legal limit of Administration military actions in Iraq without Congressional authorization is right now.

Finally, establishment media - especially the New York Times and the Washington Post, which strongly influence Washington policymakers and other media in terms of agenda-setting - must be pressed to ask Administration officials and Members of Congress about the Constitutional and legal justifications for the Administration's current military actions in Iraq and what Constitutional and legal limits they believe exist for future military actions in Iraq, if any - and they should be pressed to prominently and consistently report on the answers to these questions.

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Robert Naiman

Robert Naiman

Robert Naiman is Policy Director at Just Foreign Policy. Naiman has worked as a policy analyst and researcher at the Center for Economic and Policy Research and Public Citizen's Global Trade Watch. He has masters degrees in economics and mathematics from the University of Illinois and has studied and worked in the Middle East. You can contact him here.

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