Rand Paul does not directly call the President a war criminal, but he does say that his war is illegal. So I don’t know what else we can deduce from the Kentucky Senator’s argument in the Daily Beast: “Obama’s ISIS War is Illegal.”
Where have those Democratic protectors of the constitutional authority of Congress gone? Was it always just a partisan attack on Republican presidents?
If not, when will Democrats—who so vociferously opposed a Republican president’s extraconstitutional war-making powers—stand up and oppose President Obama’s unconstitutional usurpation of war-making powers?
Yale Professor Bruce Ackerman puts it succinctly: “The war against the Islamic State is now illegal. The War Powers Resolution of 1973 gave President Obama 60 days to gain consent from Congress and required him to end ‘hostilities’ within 30 days if he failed to do so. This 90-day clock expired this week.” And yet, there’s been no consent, and no end to the fighting.
I believe the president must come to Congress to begin a war. I also believe the War Powers Act is misunderstood; President Obama acted without true constitutional authority even before the 90 days expired, since we were not under attack at that time.
But in either case, this war is now illegal. It must be declared and made valid, or it must be ended.
I highly doubt this lawless President will go to Congress. I also doubt this Congress will do anything about it. If the Republicans can’t even stand up to Obama over the illegalities that they detest, there is not much chance they will confront him over a policy they love and support. The President as unilateral war-maker has been a Republican position for a long time.
Oddly, the fact that Republicans want to ignore Obama’s usurpation of Congress’s authority to declare war gives them common cause with John Kerry. Paul recalls questioning Kerry:
When I asked him at a Senate Foreign Relations Committee hearing how on God’s green Earth a resolution to use force against the perpetrators of 9/11 in Afghanistan could be construed to apply to the Islamic State in Iraq in 2014, he replied that it didn’t matter. The president could justify basically any war making as an “Article II” power.
For those who believe in unlimited Article II power, the argument goes that since Article II makes the president the “commander in chief” and that really Congress is only a flimsy appendage to be grudgingly consulted—but never to be bound by.
Recent attempts to replace the War Powers Act miss the point completely and attempt to mandate more consulting but do nothing to reinforce or acknowledge the primary point: that the Constitution demands authorization for a war—not a cup of tea while the war drums beat.
As Paul points out, we have a Chief Executive Officer who is trying to impose unilateral authority in many areas, not least in immigration law. Republicans need to be consistent and oppose all these usurpations, including his arrogance to go to war on his own.