The Corner

Why Rand Paul Is Wrong about the ISIS War Being Illegal — and Shouldn’t Be President

Senator Rand Paul has published an op-ed in the Daily Beast claiming that the war on the Islamic State is unconstitutional.

In the course of the piece, he accuses Republicans of hypocrisy or of supporting the view that Article II of the Constitution gives the president unlimited powers. He even singles me out as a defender among Republicans of presidential war powers. I’m flattered.

The op-ed shows why Senator Paul should stay right where he is — in the Senate. We should never put someone in the Oval Office who thinks that the United States can only use force when it is actually attacked, as he argues. That is the mindset that led the United States to ignore events in Europe as they spiraled out of control 100 years ago and to withdraw from the continent in the interwar years, leaving it to fascists who ultimately drew the U.S. back into another destructive war. It is a point of view that would have led to defeat in the Cold War and would handcuff the United States’ ability to protect itself by intervening against security threats before they arrive on our shores. It is a point of view that no serious candidate for president should hold and that no great president in our history has ever held.

If Senator Paul wants to be a leader in his party, he can begin by getting his arguments and facts straight. He is wrong to say that there are those in the Republican party, such as myself, who believe the president’s power is unlimited. That is as much a caricature as saying that Senator Paul thinks that Congress’s power is unlimited. The important difference is how, not whether, the Constitution limits presidential power.

I think that the Constitution gives Congress the power to limit the president through its funding power. He thinks that it arises from the power to declare war. No one in the Framing mentioned the Declare War Clause as a substantive check on the president’s power as commander-in-chief. The defenders of the Constitution relied instead on the funding power to do the job. (Senator Paul should check his facts — he mistakenly cites James Madison as stating in the Federalist papers that the Declare War Clause has to be a limit on the president because that branch is prone to war. Actually, Madison in the Virginia ratifying convention cites the funding power as the limit on the commander-in-chief power.) The funding power is a perfect constitutional check on the president’s commander-in-chief power, because all Congress need do to stop the president is nothing: Only by appropriating funds can a war start and continue.

Senator Paul also misreads the state of the law. He seems to think that the War Powers Resolution prohibits the administration from using force against the Islamic State without congressional approval. I happen to think that the War Powers Resolution does not limit the president’s power to defend the nation against threats from abroad. But even if it did, Congress enacted in 2001 an authorization to use force against any group connected to those who carried out the 9/11 attacks. If the Islamic State is linked to the al-Qaeda terrorist network, as it appears to be (though this depends on the facts), they fall within the AUMF. Paul doesn’t like that the law was passed way back in 2001, but it contains no time limit. Congress also passed an AUMF in 2002 to authorize the use of force in Iraq. The law is not limited to overthrowing Saddam Hussein, but extends to any threats against national security in Iraq. If the Islamic State is operating in Iraq and presents a threat to the U.S., it too falls within the Iraq AUMF. Congress has been free to amend or even repeal both AUMFs, but it has chosen not to (even at the request of the Obama administration, which was as recently as this spring asking Congress to repeal the Iraq AUMF and amend the 2001 AUMF).

To prove that he should be in the Senate, Senator Paul should start doing his job. If Paul doesn’t like the AUMFs, he should try to repeal them.

I predict that he will not, however, because he is long on posturing and short on the heavy-lifting required to actually get legislation passed. If Senator Paul really believes that the war on the Islamic State is unconstitutional, then he should start by trying to cut off funds for U.S. military operations in Iraq and Syria. He will have his chance, though through no effort of his own, because the Obama administration is requesting additional funding from Congress for the operation.

If the senator believes what he says, he should not only vote against the bill, but also try to persuade others to do so. I predict he will lose, and that approval of the funding by his colleagues in the House and Senate will constitute the legislative approval that he so desperately seeks.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.

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