I don't often agree with Senator Ted Cruz, but the Texas Republican has a point: The president has no authority to send military advisers to Iraq without the consent of Congress. Regardless of what you think are the merits of intervention, it's simply a matter of law.
The text of the War Powers Act is explicit: "The president in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." Further, it provides that unless Congress has authorized his actions, he must withdraw forces within sixty days.
The president can't argue that military advisers are not "U.S. Armed Forces," nor can he credibly claim that they are involved in a volatile situation in which hostilities are clearly indicated. Even if the advisers do not accompany Iraqi forces into the field, their mere presence in Iraq in U.S. uniforms under the present situation makes them targets for attack. Why else are they arriving armed and ready to defend themselves?
Nor can the president claim that he has "consulted" with Congress by chatting in the Oval Office with a few congressional leaders who reassured him he did not need to ask Congress for authorization. The whole purpose of the War Powers Resolution, enacted after the Vietnam War debacle, was to force Congress to take responsibility for the decision to involve U.S. forces overseas. Members of Congress may prefer not to commit themselves one way or the other, but they cannot shirk their duty to make a decision.
And the circumstances do not in any way prevent the president from seeking Congress' consent, even now. This is not a secret operation or a lightning-fast deployment of forces. It is a commitment of 300 soldiers for an indeterminate period of time in the midst of a hot sectarian war.
The White House would argue that the president as commander-in-chief has all the constitutional authority he needs to go to war without Congress. That argument has been slapped down consistently by a long line of courts ever since 1800. In the Federalist Papers No. 69 Hamilton explained that under the Constitution the president's powers as commander-in-chief "would amount to nothing more than the supreme command and direction of the military," while the power to make war and to raise an army are reserved to Congress. That's what President Obama thought at least as a presidential candidate. Even both Presidents Bush sought congressional authority before they sent forces into Iraq.
Why should it matter whether Congress consents? History teaches us that when our soldiers are committed into battle their success depends on a genuine commitment of the national will. When bodies fly home in bags and the nightly news reports that things are going poorly on the ground, the public and Congress will turn against the war unless they have resolved from the beginning to prosecute the war to its conclusion.
If Congress does not authorize the president's action, so be it. In a democracy the people govern. The important point is that we should never put America's soldiers in harm's way if we are not prepared to support them 100 percent.