The War Powers Act allows presidents to launch hostilities at their discretion, but they must receive the concurrence of Congress (to which the Constitution gives the authority to declare war) within 60 days. If that doesn’t happen, the president has 30 additional days to end the hostilities. The clock ran out on our war against ISIL on November 6.
President Obama is invoking the authority previously granted to fight the War in Iraq, but legal authorities question its applicability, since that war has been declared over and much of the fighting against ISIL is taking place in Syria. But he could certainly make a good case for fighting those monstrous terrorists. So why doesn’t he?
I suspect that neither the lame duck Congress with the Democratic Senate or the incoming Republican legislative branch wants anything to do with this issue. This leaves the President to, once again, rule by decree.
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 last night [November 6].
Obama asserts, however, that he has independent authority to wage his new campaign on the basis of Congress’s old authorizations of President George W. Bush’s wars against al-Qaeda and Saddam Hussein. His claims have provoked criticisms from scholars of all political persuasions. Nevertheless, the administration has not published a serious legal opinion backing up its extravagant statutory interpretations.
The president’s request at his news conference Wednesday for a new congressional authorization does not change his current illegal conduct of the ongoing war. If it goes unchallenged, it will serve as a precedent for unilateral war-making for decades to come.