President Obama promised a sustained military campaign against the Islamic State of Iraq and the Levant in a speech Wednesday.
However, a group of scholars interviewed by U.S. News & World Report said they doubt he can legally order an open-ended campaign without congressional authorization.
The Constitution grants Congress the power to declare war, and the War Powers Resolution of 1973 – enacted in response to the secret presidential expansion of the Vietnam War – limits the president's ability to use force abroad to 60 days without congressional authorization.
The Obama administration has cited Congress' 2001 authorization of military force against al Qaeda after the September 11 attacks, and the White House accordingly said the president already has congressional authorization to attack jihadists in Iraq and greater Syria.
But the War Powers Resolution of 1973--a resolution put in place after the president secretly expanded the Vietnam War--limits the president's ability to use force abroad for more than 60 days without congressional authorization.
"I can't think of a single plausible argument to say that the 2001 [resolution] provides authority for indefinite strikes in Syria," says Louis Fisher, a Constitution Project scholar who previously worked as the Library of Congress’ senior specialist in separation of powers.
"To reach that conclusion," Fisher says, "one would have to say that the [resolution] authorized presidents to act anywhere in the world against any group that can be called terrorist. It did not say that."
George Washington University Law School professor Jonathan Turley also disagrees with the White House position. "The claim regarding Islamic State is particularly bizarre," he says. "President Obama is claiming the right to fight al-Qaida by declaring a war on al-Qaida’s most lethal enemy – one could cause serious physical injury trying to reproduce that contorted logic."
In January, the White House endorsed a repeal of the Iraq authorization. The House of Representatives rejected that repeal in June.
Despite the laws in place, Obama has claimed constitutional authority to protect the United States as commander in chief.
"When I represented the Democratic and Republican members [of Congress] challenging the Libyan war, the Obama administration took the position in court that the president alone defines whether something is a war and unless he uses that noun, neither the courts nor Congress have any role in determining whether combat operations can go forward," he says. "It was a breathtakingly extreme argument–it effectively gutted that part of the Constitution."