One of the few things that members of Congress from both political parties seem to agree upon lately is that the president does not need congressional authorization to redeploy some 300 “military advisors” to Iraq for strategic and counter-terrorism purposes. After all, the president briefed congressional leaders about his options in Iraq last week, informing them that redeploying such a small residual force was constitutional. He encountered almost no push back. Under several previously passed provisions, the White House and congressional leaders broadly agree that such an action falls well under his legal purview.
But not everyone does.
Writing in the pages of the Washington Post, Sen. Tim Kaine (D-VA) argues that any executive, unilateral action by the president that sends troops into “harm’s way” without congressional authorization is unconstitutional. He explicitly quotes the “Father of the Constitution” to build his case:
The framers of the Constitution gave Congress the power to authorize war. As James Madison wrote, “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war to the Legislature.”
The framers also understood that a president, exercising the powers of commander in chief, might need to act before Congress in an emergency situation. But, in such a case, there must be an imminent threat to the United States, and Congress must subsequently ratify a president’s actions.
And since there isn’t an “imminent threat” to the US homeland right now, President Obama has no legal authority to take action in Iraq. At the same time, he argues, previously passed statutes have no bearing or application today:
In 2001, in response to the Sept. 11 attacks, Congress passed a broadly worded Authorization for Use of Military Force that has been interpreted by the George W. Bush and Obama administrations to authorize military action against al-Qaeda and its associated forces. Congress passed a second AUMF to authorize the Iraq War in 2002.
In the current Iraq crisis, neither authorization applies. The Islamic State of Iraq and Syria (ISIS) is not an al-Qaeda affiliate — in fact, it is openly battling with al-Qaeda in Syria — and administration officials have said that the 2002 AUMF is obsolete and should be repealed.
Kaine goes on to say that Congress should debate new war measures that deal with today’s global challenges -- especially in Iraq. “Ordering people to risk their lives without Washington doing the work necessary to reach a political consensus is immoral,” he wrote.