Obama and Congress Play Hot Potato with War Powers in Syria

Jay Newton-Small

Few savor the idea of voting for military action with the midterm elections looming.

White House photographer Pete Souza tweeted a photo of President Barack Obama and Chief of Staff Dennis McDonough taking a meditative walk on the White House grounds Monday. It was a small reminder of the infamous walk the pair took nearly a year ago when Obama decided to go to Congress for permission to bomb Syria. That proposition turned out badly: Congressional support cratered and Obama was left to scramble a diplomatic solution.

On a gorgeous Monday evening nearly a year later, the pair in their shirtsleeves could have been discussing almost the same dilemma: How does Obama continue to bomb Iraq and begin aerial strikes on Islamist militants in Syria without permission from Congress?

There are some in Congress who are calling on Obama to push through a War Powers Resolution. Article II of the Constitution grants the President the power to defend the country. But Article I gives only Congress the power to declare war. So, what in a post-War-on-Terrorism era constitutes an actual war? In 1973, afraid of Vietnam mission creep, Congress passed the War Powers Act, which requires the President to consult Congress 60 days after engaging in hostilities. If you count bombing a foreign country as hostile—as the U.S. did against militants in northern Iraq on Aug. 7—than the 60 days expires Oct. 7.

Theoretically, if Congress cares about not further weakening its oversight of the President’s ability to bomb whatever country he pleases, lawmakers will move to pass a War Powers Resolution in the next month. Presidents, including Obama, have argued that the War Powers Act is unconstitutional. But a turf fight over who gets to go to war is the last thing on Congress’ mind weeks before the midterm elections.

“Congress does not have the political will to approve a War Powers Resolution when the American people have very little appetite for war,” said Ron Bonjean, a former senior Republican congressional aide. “Getting the approval of Congress before the November elections to bomb ISIS targets in Iraq would likely require an attack on American soil or a very imminent threat of danger. Members of Congress want to secure their own reelections and this type of vote could be the defining factor in several tight Senate races across the country.”

Thus far, the Armed Services and Foreign Relations Committees in the House and Senate, which would have jurisdiction over a War Powers resolution, have been waiting to hear what Obama wants to do. Congress has a spotty history of authorizing hostilities under this President. The House only succeeded on its third try in passing a tepid authorization for action in Libya—more than three months after U.S. involvement in Libya actually began. On Syria, both chambers balked at authorizing hostilities after Obama asked for support in the wake Syrian strongman Bashar Assad’s use of chemical weapons against his own people. When congressional support disappeared, Obama was forced to make a deal with Russian President Vladimir Putin to rid Syria of chemical weapons, rather than using force against Assad.

Few Republicans, a Senate Republican aide told TIME, want to vote to support the President, especially in election season. If Obama were to ask for money for his actions—a back-door way of showing congressional support for military action without having to outright condone it—that vote would be easier as it would be a vote for the troops, the aide said.

“The GOP must fear losing what feels like big momentum right now with the chance that the President will get a rally around the flag effect,” said Michael O’Hanlon, a foreign policy expert at the Brookings Institution. “I don’t sense that, through the midterm prism, the Democrats’ concern would be as great.” Still, voting to expand hostilities in Iraq isn’t the most popular thing with Democrats either: Obama got elected in part because of his early and strong opposition to the war in Iraq—a “clean break from the failed policies and politics of the past,” as then-candidate Obama called it in a March 2008 speech. It’s ironic that before his last midterm election fight, he finds himself struggling to persuade Congress to return to a country he prided himself on leaving.

The most likely path here is that Obama will continue to do what he’s been doing, and probably expand attacks into Syria, using the Article II justification. As the White House has argued, he’s protecting Americans in Erbil, the Kurdish capitol in northern Iraq. By that measure, wherever America has an embassy, or citizens in peril, Presidents in the future will now have the precedent to engage in hostilities to protect them.

Last year, as Obama paced the grounds with McDonough, the Constitutional-law-professor-in-chief damned the politics and worried about going beyond previous precedent. A year later, and he’ll have no choice but to bow to the realpolitik of midterm elections.