At the Washington Post online, Ilya Somin claimed that the Paris attacks gave “the Obama administration an opportunity to legalize its previously unconstitutional war against ISIS.” He continues, though invoking Article 5 may not appeal to the Obama administration it “is nonetheless the only sound legal justification for continuing the war against ISIS, unless and until the president gets a new authorization from Congress.”
International legal scholar Julian Ku disagreed, noting “Article 9 of the North Atlantic Treaty states that ‘[t]his Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes.’ (emphasis added).”
In response to Ku, Somin wrote: “in the event of an enemy attack on the US itself, the president has the legal authority to use force of his own volition, without additional congressional authorization.” And Article 5 “gives him the same authority to use force as he would have in the event of an attack on the United States itself.” Indeed, Somin enthused that “Empowering the president to assist an ally under attack without having to seek congressional authorization…makes the US commitment to defend its European allies more credible and certain.”
I am struck by Somin’s enthusiasm for allowing Barack Obama to circumvent the Congress’s war‐making authority, and take the United States to war in Syria on account of attacks in France.
This is the same Barack Obama, mind you, who a number of scholars have criticized for exceeding his Constitutional authority. It seems particularly odd, given the importance that the Founders invested in the principle of legislative supremacy over the executive with respect to the war powers – Madison famously said that it was the most important passage of the entire document – that anyone, but especially advocates of limited, constitutional government, would be quick to make an exception in this case.
Will these advocates of greater executive power be now similarly inclined to allow the president to usurp a number of the other legislative powers enumerated in the Constitution? Should Obama be allowed to levy taxes and fees? Or initiate massive new domestic spending programs, independent of the Congress? Say, to implement a health care plan?
That is doubtful. What we are seeing, instead, is a manifestation of the fear‐driven politics of the post‑9/11 era, which has created a worrisome double‐standard: presidents supposedly have nearly unlimited authority to send Americans abroad to be killed or maimed, but they are severely constrained when acting here at home. This attitude is perhaps best exemplified by Bush‐era lawyer John Yoo’s claim that, in light of the supposedly uniquely dangerous threats confronting us today, “we should not…adopt a warmaking process that contains a built‐in presumption against the use of force abroad.”
Actually, we should. The supposed dangers are precisely that: we do not live in a uniquely dangerous world. Americans today, in particular, enjoy a measure of safety that our ancestors would envy, and that our contemporaries do envy. Given this state of affairs, we should be extremely reluctant to intervene in others’ disputes when our vital interests are not directly threatened. And we should never forget that efforts to create a strong executive abroad will inevitably lead to a strong one at home.
The United States should maintain military power capable of deterring attacks against the United States, and fighting and winning wars when deterrence fails. That military will also be large enough to assist other nations in need, but the authority to deploy forces in that way should never be pre‐delegated to circumvent the Congress – and, by extension, the people – of the United States.
