Does the President Have Authority to Bomb ISIS in Iraq without Congressional Authorization?

This is an interesting question that raises many of the same issues as the US involvement in Libya and the proposed involvement in Syria. The possible bombing of ISIS, of course, raises additional issues.

There are two possible bases for action by the executive without congressional authorization. First, the executive might rely on statutory authority that Congress provided in the past. There is the 2002 Iraq AUMF (Authorization for Use of Military Force), which provided that “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to . . . defend the national security of the United States against the continuing threat posed by Iraq.” Jack Goldsmith argues that this provision authorizes the proposed US bombing, based on a textual analysis. Wells Bennett contends that this textual language should be limited by the context of the AUMF – focused as it was on Saddam Hussein – as reflected in its preamble and other provisions. Interestingly, Robert Chesney argues that the 2001 AUMF linked to al Qaeda might provide the authority, despite the disagreements between ISIS and al Qaeda.

The second possible bases for unilateral executive action is Article II of the Constitution – specifically, the Commander in Chief and Executive Power clauses. Mike Ramsey powerfully argues on originalist grounds that the President would not have the authority to take action if ISIS if it were considered a state. But since ISIS is a non-state actor, he only tentatively leans toward saying that the President lacks the authority.

Another argument that denies that the President has the power to exercise unilateral execution action is Jack Goldsmiths’, but Mike Ramsey raises serious questions about it.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. gabe says

    Ramsey seems a little too equivocal and as for his claim that there is noting textually that limits Presidential “warmaking” to “important” or “national interest” limitations (while textually correct) is a bit beside the point and avoids the issue of whether or not “all is permitted” that is expressly not forbidden – and this is an issue that has never quite been resolved.
    If my failing memory still serves, the only discussion I know of concerning this matter was a discussion during the convention where it was decided to not limit Executive “war” or “hostile action” to a specific grant or declaration from the Congress because at the time the Congress may not be in session – not a concern today with instant travel and communication but clearly a valid concern in the late 18th century. However, this rationale was based purely upon the Executive responding to an invasion or “declaration” by an aggressor against the US – clearly something a tad bit more than “national interest” or “important”, wouldn’t you say?

  2. johnt says

    I’ll hazard a guess that given the original Authorization for War the President would have the authority. It was quite broad in it’s language, naming States, groups, and individuals as possible targets. This follows from the nature of the 9/11 attacks and the recognition that conventional identification of specific national enemies had been superseded by the fact of terrorism, non-state actors.
    I don’t recall the focus being particularly limited to Iraq, despite ensuing events.
    I might be wrong and so will diplomatically bow out.

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