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What you’re doing, Mr. President, will be illegal in 3…2…1.
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That’s the message Sen. Rand Paul (R-Ky.) delivered in a Monday op-ed where he took President Obama’s war on the Islamic State (ISIS) to task.
The Kentucky senator wrote:
Yale Professor Bruce Ackerman puts it succinctly: “The war against the Islamic State is now illegal. The War Powers Resolution of 1973 gave President Obama 60 days to gain consent from Congress and required him to end ‘hostilities’ within 30 days if he failed to do so. This 90-day clock expired this week.” And yet, there’s been no consent, and no end to the fighting.
I believe the president must come to Congress to begin a war. I also believe the War Powers Act is misunderstood; President Obama acted without true constitutional authority even before the 90 days expired, since we were not under attack at that time.
But in either case, this war is now illegal. It must be declared and made valid, or it must be ended.
But it’s not the only area where action is needed. This is, of course, not the only way in which this president is acting like a king.
Paul urged the soon-to-be Republican-controlled Congress to act, cautioning them not to stay silent about illegal executive actions just because they support doing something about ISIS.
“[C]onservatives can’t simply be angry at the president’s lawlessness when they disagree with his policies,” Paul wrote. “They should end their conspicuous silence about the president’s usurpation of Congress’ sole authority to declare war—even if (especially if) they support going after ISIS, as I do.”
“This is important. We can’t be for the rule of law at our own convenience,” he added. “It matters how we act both when we agree and when we disagree with the president.”
The same scrutiny, Paul contends, should be applied to “warrantless searches, carry out wiretaps, detain perceived enemies of the state, or even torture people—not just of enemy soldiers, but American citizens not engaged in combat” because expanding power in the presidency flies in the face of checks and balances and the notion of representative government demanded by the American Founding.
The expansion of president’s war powers is, like these other things, a way to have less of a president and more of a king.
“Unchecked government power, without the necessary checks and balances, is contrary to our heritage and allows for injustices most Americans would find appalling, such as indefinite detention without legal representation and torture of American citizens,” Paul wrote. “Not only is the Constitution explicit that war is to be initiated by Congress alone, our Founders doubled down on this proposition in the Federalist Papers. Madison wrote that history demonstrates what the Constitution supposes, that the Executive Branch is the branch most prone to war, therefore the Constitution vested the power to declare war in the legislature.”
