I want to endorse Bonnie Kristian’s proposal at RealClearDefense. Regardless of who is elected president in November, the president’s blank check for waging war needs to be removed:
The War Powers Act requires congressional authorization for the president to deploy troops longer than 60 days—and if we take President Obama at his word that the wars in Iraq and Afghanistan ended in 2011 and 2014, respectively, then congressional permission to fight ISIS is long, long overdue.
Smith himself initially supported anti-ISIS strikes, but he began to be uneasy as weeks turned into months without a peep from Congress. “I began to wonder, ‘Is this the Administration’s war, or is it America’s war?’†he said. “The Constitution tells us that Congress is supposed to answer that question, but Congress is AWOL. My conscience bothered me.â€
He remains bothered still—but now with the support of constitutional scholars who say his complaint is correct. Advising the suit is Yale’s Bruce Ackerman, who argued nearly a year ago that a suit like this might and should succeed. “The biggest casualty in the struggle against the Islamic State so far has been the American Constitution,†he wrote, pointing out that since the Vietnam War, “Existing case-law establishes that individual soldiers can go to court if they are ordered into a combat zone to fight a war that they believe is unconstitutional.â€
Even if the Supreme Court ultimately “upheld the [Obama] administration’s view,†Ackerman notes, “it would put future presidents on notice that the justices will seriously scrutinize further efforts to transform the resolutions of 2001 and 2003 into open-ended grants for new military adventures.†After the last decade and a half of costly foreign entanglement, surely that sort of accountability should appeal to all but the most reckless hawks.
Ackerman isn’t the only scholar who agrees the AUMF (and executive war power more broadly) has been stretched beyond on all reasonable scope.
Under Article I, Section 8 of the U. S. Constitution the power to declare war is given exclusively to the Congress. Fighting undeclared wars is not a reasonable exercise of the president’s authority as commander-in-chief. It’s an arrogation of congressional power.
If the only way to impel the members of Congress to reassert their prerogatives is by imposing term limits on them, so be it. The status quo twists our system out of all recognition.
I think the notion that losing might still be winning is ill-advised. Once the Supreme Court rules against this case, as I think they most certainly will, Constitutional norms shift. When the SCOTUS ruled that it would largely defer to the political branches on the commerce clause during the New Deal, the political branches passed more laws under the commerce clause.
Losing is rarely if ever winning. That’s just what losers say.
I agree that term limits are long overdue. The courts cannot fix Congress, only the people can, but it will take an extraordinary movement to force them to impose term limits.