President Obama does not need Congress to act against ISIL

Law professors tend to think that legal texts, structures and precedents can control our politics. Ordinary citizens, by contrast, think that politics determines our law. The truth is somewhere in between: Law and politics have a reciprocal relationship. Sometimes one and sometimes the other is the more influential. Most of the time, we get the law that we want, and almost always we get the law that we deserve. Law won’t do the hard political work for us, and law won’t save us from politics.

This is important to remember today as some law professors denounce President Barack Obama’s announced policy of military action against the Islamic State of Iraq and the Levant (ISIL) as a new expression of an unconstitutional presidential imperialism. For instance, in his op-ed for The New York Times, Bruce Ackerman, my colleague at Yale Law School, made this charge.

The accusation fails the test of common sense. The overwhelming problem of Obama’s presidency has been his lack of power. On virtually every issue, from immigration reform to fiscal policy, he has been rendered incapable of action. Not only has he been unable to get his budgets passed, but he has also barely been able to keep the federal government open for business. When we look abroad, the story is much the same. The United States’ allies act with little regard for the president’s foreign policy. Israel actively campaigns against him while our Arab “allies” have long stopped following U.S. suggestions. Relations with Russia and China are at new lows. A little more presidential power might be quite useful in dealing with the world’s crises, whether confronting climate change and Ebola or Vladimir Putin and ISIL.

If there is a crisis in the U.S. presidency, it is its lack of power. As Americans head into midterm elections, all indications are that this situation will only get worse as a lame duck president faces an even more hostile Capitol Hill. To call this presidency imperial is a misanalysis that will be used for political purposes by those determined to continue to frustrate the policies of any Democratic president.

But is there some deep constitutional principle at stake here, the violation of which will come back to haunt us later? No. The Constitution gives Congress the power to declare war, but the 18th century concept of war did not mean every use of force. No one thinks the president needs a congressional declaration to defend against attack, for example. To use force in defense of international law and human rights is not the war that the framers had in mind. This is why in over 200 years Congress has rarely declared war, while the country has been involved in the use of force for just about half its history.

Is Obama’s assertion that he has the authority to set this policy nevertheless violating the War Powers Act, passed over presidential veto in 1973? That act purports to limit a presidential commitment of armed forces abroad to at most 90 days, absent a congressional authorization. Whether the act applies is a complicated question that has an easy answer. If Congress objects to what the president proposes to do, it must do the political work now. Congress is notoriously unwilling to offer a considered second look when it comes to the use of force. It is too close to public opinion, which is easily whipped into war fever. ISIL militants behead two Americans, and the public is ready to act. Congress never leads; it never checks these swings in public opinion. The law won’t make Congress take responsibility when it lacks political courage and exhibits no capacity for deliberation or judgment. Defending Congress’ role is placing form over substance.

When the president decides to use force, the law professor’s expertise is pretty much beside the point. The important question is the quality of the judgment expressed in the political decision. On this point, I have severe doubts. Obama’s plan sounds like a reasonable, measured response. The problem is that we won’t get the war the president wants; we get the war that our opponents want. We simply don’t control events. The imperialism of the presidency has nothing to do with this. To take up violence is to invite a politics of raw emotions that will drive events on both sides.

Obama may believe that there will be no boots on the ground, but what would happen if U.S. warplanes were shot down and American airmen held captive? What would happen if they were beheaded before a world audience? What would happen if there were a bombing in Times Square in response to our intervention abroad? Does anyone really think that Congress would assert a calming influence? Would Obama maintain his cool?

These risks might be worth taking if there were some substantial chance of military success on its own terms. Everything we know about American interventions abroad suggests otherwise. America spent years and billions of dollars trying to build a stable Iraq. It is a country of 33 million people. How was it unable, after such a massive U.S. investment, to defend itself against some 10,000 ISIL fighters?

ISIL-controlled territory borders Turkey, a member of NATO with substantial forces and a population of 75 million. Why does it need the U.S. to deal with this threat? The answer is that it is more worried about the Kurds than it is about ISIL. The tangled political story is the same across the region. The lesson has been learned but always seems to be forgotten: U.S. force cannot change other countries’ politics. ISIL must be dealt with locally. We can help, but we cannot lead. It is not our fight if it is not theirs first.

For whatever reason, Obama has overcome his natural reluctance to re-enter the violence of the Middle East. The power of his office was shown in its best light in his long resistance to mythical claims that U.S. power is an answer to political failure elsewhere. Giving in to political demands now is an expression not of the hubris of the office but of its weakness.