President Obama will be on shaky legal ground if he continues to attack the Islamic State in Iraq and Syria without approval from Congress, constitutional law experts say.
U.S. troops launched air strikes against ISIS over the weekend, as the terrorist group advanced through northern Iraq, threatening the U.S. consulate in Erbil and displaced Iraqis who have sought shelter on nearby Mt. Sinjar.
Most constitutional law experts say Obama acted within his authority to defend Americans in Erbil from immediate danger. But critics say Obama should have sought congressional approval before expanding a fight with ISIS that could last months or even years.
“I think any conflict of a couple days in nature could be justified,” said Louis Fisher, a scholar at the Constitution Project, “but as President Obama said last weekend, this is not going to be for just a couple days or weeks, it could go on for a year or two.
“For anything of that scope, he should come to Congress for their approval,” Fisher added.
Fischer and other constitutional scholars believe Obama is toeing a fine line by engaging ISIS forces in Iraq.
“Defensive power is limited to an immediate response to an attack,” said Peter Raven-Hansen, a national security professor at George Washington University’s law school.
“No one would doubt that President Roosevelt could order the Navy to shoot back at the Japanese after Pearl Harbor, but that doesn’t mean he could wage a war for five years without congressional authority,” he continued.
“The longer the conflict goes on, the broader the intervention, the greater the need for congressional approval.”
Now that U.S. forces have attacked ISIS, the clock is ticking for Obama, Fisher said.
Under the War Powers Act, Obama is required to report to Congress within 48 hours of the airstrikes commencing, Fisher said. At that point, he has 60 days to convince Congress to get on board, or else pull out the troops.
President Obama could extend that period by 30 days if the troops’ lives would be endangered by an immediate withdrawal.
However, President Obama has flirted with this law before, Fisher said.
In 2011, he launched airstrikes in Libya to aid rebel forces seeking to overthrow Moammar Gadhafi, a seven-month campaign, all without congressional approval.
Last year, Obama also said he did not need permission from Congress to launch a military strike on Syria, even as he sought their support. The president eventually abandoned plans to attack in the face of overwhelming opposition from lawmakers.
“As commander in chief, I always preserve the right and the responsibility to act on behalf of America’s national security,” Obama said at the time. “I don’t believe that I was required to take this to Congress. But I did not take this to Congress because I think it’s an empty exercise.”
Now in Iraq, most constitutional law experts say Obama had the authority to launch strikes to protect Americans in Erbil.
“That, I think, was a lawful exercise of his powers as commander in chief, even without prior congressional approval,” Raven-Hansen said.
Some though question whether he had the authority to launch additional airstrikes to protect displaced Yazidis who have taken refuge from ISIS on Mt. Sinjar outside of the city.
Obama has defended the airstrikes against ISIS near Mt. Sinjar as a “humanitarian effort” necessary to prevent genocide.
The airstrikes at Mt. Sinjar are a “little different situation, because Obama’s not defending Americans,” Raven-Hansen said.
“President Obama, arguably, has no constitutional authority to use American forces in combat to defend foreigners,” he added.
Robert F. Turner, a national security professor at the University of Virginia, though, defended Obama’s actions in Iraq.
Turner said that Obama can continue ordering airstrikes against ISIS, because they are not a foreign state, just a terrorist group.
“What he’s doing, it’s not an act of war,” Turner said. “He’s essentially coming to the defense of Iraq. Nobody recognizes ISIS as a state. They’re not set up as a government, they’re just a band of terrorists.”
“Uses of force short of war have been carried out many times in this country without Congress being involved,” he added.
Turner noted though that for political reasons, Obama might well choose to go to Congress.
“Just because the Constitution doesn’t require it, a wise president will still go to Congress and tell them what he’s doing and why he’s doing it, and then urge Congress to endorse it,” Turner said.