Letter to Congress

Welcome back from summer recess, Congress! I hope you're well-rested and reinvigorated. You have so much to do to improve our country! Here's what you should focus on:

1. Islamic State
President Obama is likely to ask you for funds to arm and train pro-Western Syrian rebels to fight Islamic State militants. This action would be narrower than a use-of-force vote, which we have discussed earlier. Islamic State is still threatening to quash democracy in Iraq.  It has beheaded two American journalists.  And it will continue its genocidal persecution of Yazidis and Christians.  The U.S. must continue to stabilize the region, for moral as well as national security reasons. 

2. Government Funding
Yes, I realize that this is an election year, so it's important for candidates to take memorable stands. But little, if anything, was accomplished by last year's shutdown. Pass the continuing resolution to keep the government running beyond the end of this month.  The same goes for the U.S. Export-Import Bank. Whether it is a job creator, free-market distorter, or both, the uncertainty of its short-term fate discourages transactions and destabilizes U.S. business interests abroad.

3. Immigration

President Obama told NBC recently that he will not pursue action on immigration until after the November elections. he admitted that politics shifted midsummer due to the influx of undocumented migrant children.  Shouldn't this influx mean something should be done?  That the status quo isn't working? President Obama's reluctance to take unilateral action creates an opportunity for Congress to create a bipartisan coalition and come up with thoughtful, durable legislation to address immigration.  As I have written earlier, I don't know what the solution is.  But shouldn't congresspeople want to start throwing ideas out for debate?

Now that we've identified priorities, here's what you shouldn't spend time on this week:

1. Militarization of local police forces in response to Ferguson

This is a matter of local concern. You work for the federal government. You have enough to deal with on a national and international level right now. I learned recently that the Department of Justice has the power to oversee local police practices, including patterns of stops, arrests, and use of force.  But creation of a "federal police czar," as some progressives are calling for, would simply mean greater federal intrusion into purely local matters.

2. Campaign finance constitutional amendment 

House Democrats are expected to introduce a constitutional amendment to overturn Citizens United v. FEC and McCutcheon v. FEC. This amendment would restrict political speech by allowing aggregate caps on political contributions.  As Ted Olson argues in today's WSJ, "Voters, whatever their political views, should rise up against politicians who want to dilute the Bill of Rights to perpetuate their tenure in office." Well said.

Good luck! Let me know if you need any help.

Congressional Authorization for Military Force in Iraq

As you likely know, last week President Obama authorized  military action in Iraq–“targeted airstrikes to protect our American personnel” and humanitarian aid to the internally displaced Yazidis and Christians that are facing death at the hands of the extremist group calling itself the Islamic State.  According to President Obama, America should not intervene every time the world faces a crisis.  Yet we are justified in our current involvement because: American civilians, diplomats, and facilities in Erbil were at risk; innocent people were facing the “prospect of violence on a horrific scale”; the Iraqi government asked for our help; and we have “the unique capabilities to prevent a massacre.”  I agree with President Obama—we cannot turn a blind eye in this situation. This cannot become another Rwanda. 

Critics of the president’s actions worry about the open-ended timetable of American military involvement in Iraq. Senator Chris Murphy (D., Conn.) stated, “It is justifiable to sue military strikes to protect U.S. personnel or to prevent potential genocidal attacks by [the Islamic State], but I do not believe the American people will support a longer-term military mission designed to tip the balance in Iraq’s civil sectarian war. At the very least, if the President is contemplating action that will take months, rather than days or weeks, to conclude, he needs authorization from Congress.”  But previous congressional authorization arguably covers the President’s current actions, and it draws no distinction based upon the length of the operation.

The Authorization for Use of Military Force Against Iraq in 2002 allows for the President to use force “as he determines to be necessary and appropriate in order to—(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.” P.L. 107-243. The statute does not provide for automatic termination of its use-of-force authorization. Presidents Bush and Obama both relied upon the broad authority granted them by this law until the withdrawal of troops from Iraq in December 2011. (For a detailed discussion of declarations of war and authorizations for the use of military force, see this paper from the Congressional Research Service.) At the time of the expiration of the United Nations mandate for force in Iraq in the beginning of 2009, members of Congress had argued that a new authorization of force was necessary to maintain a U.S. military presence in Iraq.  But the Obama administration did not seek a renewed authorization of force, and efforts to repeal P.L. 107-243 failed. So troops remained in Iraq under a U.S.-Iraq agreement until the end of 2011. 

Because the Obama Administration relied upon P.L. 107-243 from 2009 through 2011, and the statute does not automatically terminate, it arguably still applies.  That means that if the president finds that Iraq poses a threat to the national security of the United States, Congress has authorized him to use whatever force he deems necessary and appropriate. The statute does not call for renewed authorization if the engagement lasts for months rather than days or weeks.  So Senator Murphy’s proclamation is misguided.  President Obama need not seek congressional approval as the current military campaign in Iraq progresses. (Of course, President Obama could seek approval anyway, for political reasons. But he's unlikely to do so, since his legacy includes ending the war in Iraq.) 

Suing the President

Yesterday, the House of Representatives voted to proceed with a lawsuit against President Obama.  The President has, in my opinion, overstepped his constitutional authority on more than one occasion, whether by failing to enforce laws or unilaterally rewriting laws.  And it is this habitual line-stepping on which House Republicans base the lawsuit.

Obama responded by calling the suit nothing more than a “political stunt.”  And the President is right.

House Republicans see the lawsuit as an acceptable middle path: it’s not as aggressive as impeachment (which may stir the Democrat base into action during the midterm elections) but it’s more aggressive than doing nothing (which may alienate the Republican base).  It’s a symbolic, political slap-fight.  So the House has capped off the "least productive" year in Congressional history—I say this tongue-in-cheek because, hey, maybe Congressional productivity shouldn’t be measured by how many pages Congress adds to the United States Code—by pursuing a lawsuit that will hardly be productive.  And so I fault the House, both for plodding down a course that will likely lead nowhere and for failing to take alternative actions if the House actually believes the President’s conduct is egregious enough to file such a suit.

First, the suit has significant legal hurdles.  The House seems to lack standing to bring the suit at all.  I have seen the argument made that the House has standing, in part, due to the nature of the aggrieved congressmen.  If, rather than bringing the lawsuit as a group of bitter congressmen, the group brings the lawsuit on behalf of the institution as a whole (i.e., by voting on a resolution like yesterday’s), it might then have standing.  But I have not (yet, anyway) read a compelling argument as to the nature of the House’s injury-in-fact.  Is House Republicans’ argument simply that a law Congress passed—specifically, the Affordable Care Act—hasn’t been executed properly?  On that logic, wouldn’t the House then be able to sue the President whenever a law has been improperly executed?  That’s an arrow that has been stuck in the House’s quiver for over 200 years.  I am not, however, as well-versed in standing jurisprudence as others on here, so I would be interested in hearing if my understanding is wrong.  

Second, as to the alternative measures, the House could, if it so chose, try to impeach the President.  And I think you could make a straight-faced argument that members of the House have an obligation to pursue impeachment if they believe the President’s conduct is impeachable.  Isn’t that what our system of checks and balances is all about?  And don’t members of the House have a duty to uphold the Constitution?  While impeachment may not be the most politically advantageous, and it may not lead to a conviction in the Senate, it is part of the House’s job to keep the President in check through its power to impeach.  The House owes a duty to its constituents to protect them from the aggrandizement of power in the executive.  Sure, the House has some discretion, akin to prosecutorial discretion.  But how much?  If the House believes that egregious Constitutional violations have occurred, perhaps it shirks its own duties by failing to impeach.  (The impeachment option, too, adds to the House’s legal obstacles: although the House’s having that alternative, in itself, does not preclude it from pursuing other remedies—such as a lawsuit—the availability of another remedy may be enough for a court to avoid deciding the issue.)

There may be some political cache in filing the lawsuit.  And, given my views that the President has, in fact, overstepped his bounds, I hope that I am wrong and the suit ultimately curbs his authority.  But it sure seems like a big waste of time.