Contributor, The Volokh Conspiracy

Secretary of Defense Ashton Carter recently indicated that the ongoing war against the terrorist organization ISIS has expanded to include combat operations by US ground forces:

Defense Secretary Ashton Carter said Tuesday that the U.S. will begin “direct action on the ground” against ISIS forces in Iraq and Syria, aiming to intensify pressure on the militants as progress against them remains elusive.

“We won’t hold back from supporting capable partners in opportunistic attacks against ISIL, or conducting such missions directly whether by strikes from the air or direct action on the ground,” Carter said in testimony before the Senate Armed Services committee, using an alternative name for the militant group.

Carter pointed to last week’s rescue operation with Kurdish forces in northern Iraq to free hostages held by ISIS.
Carter and Pentagon officials initially refused to characterize the rescue operation as U.S. boots on the ground. However, Carter said last week that the military expects “more raids of this kind…”

Carter and Pentagon officials initially refused to characterize the rescue operation as U.S. boots on the ground. However, Carter said last week that the military expects “more raids of this kind” and that the rescue mission “represents a continuation of our advise and assist mission.”

This may mean some American soldiers “will be in harm’s way, no question about it,” Carter said last week.

After months of denying that U.S. troops would be in any combat role in Iraq, Carter late last week in a response to a question posed by NBC News, also acknowledged that the situation U.S. soldiers found themselves in during the raid in Hawija was combat.

“This is combat and things are complicated,” Carter said.

This expansion of the US role further underscores the reality that we are waging a real war against ISIS, one that, under the Constitution, requires congressional authorization. It is no longer possible (if, indeed, it ever was) to describe this as just a few small-scale air strikes. Yet, even after more than a year of combat operations, no such authorization is in sight.

The Obama administration has offered a variety of legal rationales for its policy, including claims that it falls within the president’s inherent executive authority, or that it is authorized by the 2001 Authorization for Use Military Force against the perpetrators of the 9/11 attacks, or the 2002 Iraq AUMF. But each of these theories has serious flaws. Other, perhaps even more questionable, rationales of the administration’s action have been put forward by controversial Berkeley law professor and former Bush administration official John Yoo. I criticized Yoo’s theory here, though I do give him credit for consistency in defending Obama using the same logic that he endorsed during the Bush administration. Yoo, in fact, epitomizes the kinds of broad Bush-era theories of presidential power that then-Senator Obama denounced when he first ran for president in 2008.

The growing use of American ground forces in combat does not in and of itself change the legal situation. The ongoing use of large-scale air strikes over many months was in and of itself a large enough combat operation to qualify as a war requiring congressional authorization. But it does undercut claims (first made by the Administration during its 2011 war against Libya), that interventions of this type don’t require congressional authorization because air strikes alone don’t qualify as a war or even as “armed hostilities” covered by the 1973 War Powers Act, which imposes a requirement of congressional approval for combat operations abroad lasting more than 60 day. Yale law professor Akhil Amar even argued that such air strikes don’t require congressional authorization because there is little or no risk of US casualties.

Such claims are extremely dubious. Months of bombing surely qualifies as a war, by any reasonable definition of the word. Nor is the existence of a war somehow negated by the fortunate fact that US forces have so far suffered very few losses. But even if you buy the extremely dubious claim that ongoing air strikes don’t amount to a war, the use of American ground forces in combat operations means they no longer apply to the conflict with ISIS. And, as the secretary of defense admitted, US troops “will be in harm’s way, no question about it.”

In fairness, the administration did ask Congress to pass a new AUMF earlier this year. But the draft it submitted to Congress had so many flaws that both Democrats and Republicans voiced strong objections, as did many academic experts. Most Republicans do in fact support fighting ISIS. This is one of the few issues that Obama and GOP conservatives in Congress largely agree on. It should be possible for the two sides to come up with an AUMF that both can sign on to. Both the administration and Congress deserve blame for the failure to do so. Congress also deserves censure for its failure to assert its prerogatives. But the president deserves even more opprobrium, because he is the one who initiated an unconstitutional war in the first place – now for the second time.

For reasons I have explained in the past, the lack of congressional authorization for the war is not just a technical legal issue. In addition to setting a dangerous precedent for the future, it also undermines the effectiveness of US military intervention, and makes it more likely that the operation will end in failure, or at best stalemate. That should worry you even if you don’t otherwise care about legal issues or about enforcing constitutional limits on presidential warmaking.