by Chris Edelson, an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.
Watching Congress utterly fail to discharge its duty as President Obama boldly exceeds the limits of his power by unilaterally authorizing military action against ISIS reminds me of the old philosophical question: if a tree falls in the forest and no one’s there to hear it, does it makes a sound? In this case, the question is: if the President violates the Constitution and Congress does nothing, are there any consequences for the constitutional violation?
The answer is almost certain to be “no”. The Constitution is not self-enforcing. It only works when each branch of government resists and rejects overreach by the others—and, when it comes to checking executive overreach in the context of national security, the key actor is Congress. As Justice Robert H. Jackson observed in the 1952 Youngstown Sheet decision, “I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress…We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.”
What we’re seeing right now is Congress letting power slip right through its fingers and become more concentrated in the hands of the President. Congress has gone into recess without weighing in on the President’s decision to authorize military action against ISIS in Iraq and Syria (the vote to arm Syrian rebels addressed a separate matter). President Obama has claimed he has authority to order military action based on the 2001 Authorization for the Use of Military Force against Al Qaeda and the Taliban. But that legislation cannot plausibly provide authority to act against ISIS, a rival of Al Qaeda’s that did not even exist when the 2001 AUMF was enacted. As Harvard Law professor Jack Goldsmith put it, President Obama’s decision to order military action against ISIS in Syria “is, at bottom, presidential unilateralism masquerading as implausible statutory interpretation.”