Why Won't Congress Declare War On ISIS?

Because Congress.

12/15/2015 08:41 am ET | Updated Dec 15, 2015
  • Matt Fuller Congressional Reporter, The Huffington Post
Chip Somodevilla via Getty Images

If authorizing war against ISIS were easy, Congress would have already done it.

If lawmakers weren't so afraid of the vote, the House and Senate might have authorized military action back in September 2013, when President Barack Obama's "red line" in Syria started looking more like the title of a Robin Thicke song. The sudden concern over Syrian President Bashar Assad's use of chemical weapons, which brought lawmakers back from their August recess a week early, just as quickly subsided when Obama announced that, on second thought, he was holding off on airstrikes. Congress -- maybe not collectively but at least mostly -- was relieved.

If voting on a so-called Authorization for Use of Military Force weren't so militarily and politically perilous, Congress might have done it in February, when Obama finally sent over a new AUMF to combat ISIS. GOP hawks promptly dismissed the draft authorization as too restrictive. Liberals lambasted it for not repealing the still-used 2001 AUMF that was passed in the days after 9/11. Congressional leaders shoved Obama's draft in a filing cabinet, satisfied to never speak of the damn thing again.

Lawmakers are too afraid of the consequences of authorizing a new war. At least, that's the opinion of lawmakers themselves when you ask why Congress hasn't voted on a new AUMF.

"No guts," says Texas Republican Rep. Randy Weber.

"Political timidity," says California Democrat Rep. Adam Schiff.

"Cowards," says Rep. Marcia Fudge (D-Ohio). "I'm ready to vote on it today, but the majority doesn't want to take a stand. They want to complain, and tear down, and talk about the president's policy. But they don't want to put forth a policy."

"They're just cowards," Fudge says. "Simple as that."

Simple as that. Cowards.

In conversations with more than 30 lawmakers, however, it's clear it isn't as simple that. Yes, lawmakers are scared to take the vote. Yes, they know that, among the thousands of procedural votes in a career, among the forgotten post office-naming bills and the ceremonial congressional gold medals, authorizing military action is one vote they -- and their constituents -- will remember.

But it goes beyond that. Most of the members who talked to The Huffington Post would be happy to vote on a new AUMF tomorrow -- as long as it's an AUMF they support.

And therein lies the real difficulty of getting a new war authorization. There are members who don't want to go on the record, but there's also a healthy number of lawmakers all too happy to tell you exactly where they stand and precisely what an AUMF should look like -- if you have 10 minutes now and maybe want to drop by the office later.

Indeed, it’s not hard to find lawmakers uncomfortable with using the 2001 AUMF in Syria. Some even go so far as to call it unconstitutional, though lawmakers generally find ways to avoid that particular word.

“Extraconstitutional” was what House Natural Resources Chairman Rob Bishop (R-Utah) called it. “Not sufficient,” was the description from Rep. Adam Smith (D-Wash.), the House Armed Services ranking Democrat. “Legally precarious,” says Schiff.

Ask Florida Democrat Alan Grayson -- with his three Harvard degrees -- whether current military actions in Syria are unconstitutional, and he’ll sigh. “Unless you believe the president has unilateral and unchecked powers under the commander-in-chief clause, the answer is yes,” he says, like it pains him.

Yet the prospect of Congress doing anything is a long shot. Partly because members are cowards, yes, but more because the distance between lawmakers is just too vast.

On one extreme are the hawks. You have Sen. Lindsey Graham (R-S.C.), who recently offered an AUMF with no restrictions on the president's ability to go after ISIS. If you liked the 2001 AUMF, which empowered the president to go after the perpetrators of 9/11, but is now being used to justify military operations in Syria 14 years later, then you're going to love Lindsey Graham's proposal.

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On Graham’s side -- as with most things -- is Senate Armed Services Chairman John McCain (R-Ariz.), who tells HuffPost that not only would any restriction on an AUMF be unreasonable, it would be unconstitutional.

"Congress should not be telling the commander-in-chief what to do," McCain says. "If we establish that precedent, he's no longer the commander-in-chief."

McCain continues: "I have a problem with any AUMF that is restricting the ability of the commander-in-chief to defend the nation -- I always have and I always will."

Aligning with McCain on the House side are members like Rep. Peter King (R-N.Y.), who tells HuffPost that, while he'd be glad to vote for a new AUMF, the president doesn't need it -- not because he has the 2001 authorization, but because the president inherently has war authority as the commander-in-chief.

"He has all the power," King says. And if Congress wants a say, King continues, members can always cut off the funding for military operations.

On the other side -- though maybe not quite as far from the center -- are a number of Democrats and conservative Republicans who think the current war authorizations, the 2001 AUMF and a 2002 authorization that allowed operations in Iraq, are, in the words of Rep. Mick Mulvaney (R-S.C.), "wholly inadequate."

Presented with King's belief that the president already has war powers, Mulvaney was perplexed.

"I'm pretty sure the Constitution says Congress declares war, but maybe Mr. King is reading a different Constitution than I am," he says.

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Mulvaney lays out three reasons why members have resisted voting on an AUMF. The first reason, which you'll hear from a lot of members who might not want to take the vote, is that the president hasn't laid out a strategy yet.

"I think that's probably fair, but not entirely determinative," Mulvaney says. "One of the things we could do, for example, is have hearings and call the administration in to tell us what their strategy is."

Lots of lawmakers cite the president’s lack of leadership on an AUMF as a key reason there hasn’t been a vote. In the words of North Carolina Republican Rep. George Holding, "He wants to dodge the bullet and duck the issue by trying to throw it to Congress and saying 'You come up with a plan.'"

And if you remind these lawmakers that Obama did submit an AUMF in February, they’ll remind you that a lot has changed since then. “That was February,” in the words of Holding.

The second reason Mulvaney supplies is that "our fingerprints would be all over any subsequent action."

Plenty of members offer some variation of that rationale. Rep. Walter Jones (R-N.C.) accuses House leadership of not wanting to have "any blood on their hands." Rep. Elijah Cummings (D-Md.) says that, if things go wrong, Republicans don't want to be blamed for it, which Randy Weber backs up by telling HuffPost that the discussions he's heard lead him to believe members expect Obama to fail in Syria. "And they don't want to own it," Weber says.

Mulvaney's last reason Congress doesn't want to vote on an AUMF was perhaps his most complex, but was again cited by a number of members: That, should Congress take up the AUMF debate, and should members fail to find agreement, it would undermine the military. Or, in Michigan Republican Rep. Justin Amash's telling, it would "shift the focus from the president's failed strategy to our own inability to get something through Congress."

That's not really a concern of Amash's; he's all for voting on a new AUMF. Mulvaney is, too. As are a number of other board members of the House Freedom Caucus. Rep. Matt Salmon (R-Ariz.) recently wrote a letter to Speaker Paul Ryan (R-Wis.) saying the House shouldn't leave for Christmas before taking up the AUMF debate.

While Congress almost certainly won’t meet that standard this week, the letter may be a signal that the HFC is preparing a more serious effort in the new year. Salmon says he's been telling Freedom Caucus Chairman Jim Jordan (R-Ohio) that the conservative group "should be pushing the spear on this thing," and Idaho Republican Raul Labrador, a key member of the faction, tells HuffPost that the Freedom Caucus already has been working on it.

"Within the next few months, I think we're going to see one,” Labrador says of an AUMF, offering that, in his professional opinion, the only reason Congress hasn’t already voted on one is because, "People in Congress have a hard time making hard decisions."

Whether the Freedom Caucus makes an AUMF vote an official position of the group -- and what members are willing to do to get it -- is the real question. Any single lawmaker truly motivated to get an AUMF vote could be a real pain in the ass.

In the Senate, one rogue member’s ability to grind the chamber to a halt is famous. In the House, a single lawmaker has similar gadfly tactics at his or her disposal, including offering motions to adjourn, a motion to vacate the chair, even forcing votes on impeaching the president -- if the member truly does think this war is unconstitutional. And if 40 members were behind the effort to get an AUMF vote, there’s an even fuller array of strategies, such as voting down rules for other bills. Should the Freedom Caucus push for an AUMF though, its members may not have to push too hard -- at least not with House leadership.

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One senior GOP aide said that Ryan has expressed support in meetings to make another attempt at an AUMF next year. Ryan's spokeswoman, AshLee Strong, tells HuffPost that, "If the president puts forward a strategy for defeating ISIS he’ll have a ready partner in the speaker."

At a Tuesday morning breakfast hosted by Politico, Ryan said he believes the president has the legal authority for Syria under the 2001 AUMF. "I do also believe it would be a good sign for American foreign policy to have a new one updating our AUMF to declare our mission with respect to ISIS," he said. "I think that would be good for putting America in an offensive posture."

Ryan continued that the question was, "can we write an AUMF the president will sign where he's not going to handcuff the next president, and can we get consensus on how to do that?"

On the Senate side, AUMF prospects are a little more bleak. Majority Leader Mitch McConnell (R-Ky.) said last week that he didn't want to pass an AUMF that would constrain the next president, and that Obama clearly feels he already has authority to conduct operations against ISIS. Plus, McConnell's conversations with Democrats make him believe the only sort of AUMF they would support is one of "micromanagement."

Democrats are interested in an AUMF that places certain restrictions on the president. But the question is whether there's a critical mass of Democrats who could live with a broad authorization. Considering the starting point, where the president already apparently has unlimited authority, even another general AUMF updating that authority may find some support.

Last week, Schiff, the top Democrat on the House Intelligence Committee, proposed an AUMF that would repeal the 2001 and 2002 AUMFs and would replace them with an authorization to go after ISIS, al Qaeda and the Taliban for three years. While many Republicans will likely have a problem with an AUMF limited in duration, the broadness of the overall authority could be a signal that Democrats are willing to consider something that even the hawks could get behind. Still, Schiff's AUMF differs from a current bipartisan and bicameral proposal in that it allows Congress to vote on limiting the president's use of combat troops.

Many Republicans in Congress would almost certainly object to Schiff's plan. Even the White House might. But Schiff says his sense is there's a gathering mass of lawmakers interested in doing something.

Last week, after Obama again called on Congress to approve a new authorization, White House press secretary Josh Earnest fielded a question on whether the Obama administration would be working with Congress to produce a new AUMF. Earnest ducked that question, noting that the president had already sent Congress an AUMF and had dispatched his national security team to Capitol Hill to discuss why the legislation was important.

"In the face of all of that, Congress has done absolutely nothing other than criticize," Earnest said.

That's true, more or less. Plenty of Democrats -- even some Republicans -- were happy to call out the hypocrisy of Congress bashing Obama for executive overreach and then completely deferring to him on an ISIS policy. But the White House hasn't exactly pushed the AUMF issue as hard as it could. It's difficult, after all, to make the case that Congress is abdicating its responsibility when you're also arguing that you don't actually need a new AUMF.

"They're trying to have it both ways right now,” says Rep. Thomas Massie (R-Ky.) “I think they know the AUMFs that they're ostensibly operating under do not authorize what they're doing.”

The draft the White House sent to Congress in February wouldn't have repealed the 2001 authorization, though the president said he was open to ultimately doing just that. But whatever restrictions Congress places on a new AUMF, if it doesn't take away the 2001 authority to apparently combat any terrorist threat in the name of 9/11, it's not playing for keeps.

Of course, repealing the old AUMFs could be separate from agreeing to a new authorization. It’s just that Democrats see the AUMF conversation as the natural home for a discussion on repealing the old ones. So, with Democrats demanding a host of restrictions on the president's war authority in addition to a repeal of the current AUMFs, and with Republicans, by and large, insisting on no constraints whatsoever, what could actually pass?

Again, there are plenty of difficulties. Many members are too scared. Many others are unwilling to compromise. And the impetus for a new AUMF doesn't exist, not when the administration says it has all the authority it needs.

But things can change quickly in Congress. Another terrorist attack could completely flip the political reality. A new AUMF from the president could reignite the conversation, too. Even a stirring, let's-go-kick-some-ISIS-ass-I-SAID-LET'S-GO-KICK-SOME-ISIS-ASS speech from Paul Ryan might do the trick.

Until something changes, however, until the politics of a war vote improves or politicians stop caring about politics, the question isn’t why won’t Congress vote on an AUMF. It’s why would they?

Jennifer Bendery contributed reporting.

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