In a recent op-ed for the Daily Beast, Senator Rand Paul became the latest critic of what many see as a long history of Presidential abuse of power stretching back to Richard Nixon. In his piece, entitled “Obama’s ISIS war is illegal,” Paul made clear his view that the President’s action against the Islamic State of Iraq and Syria has eclipsed its legality — if there ever was any to begin with — because we have now crossed the 90-day provisional authorization for military force permitted by the War Powers Resolution of 1973.

To be sure, it doesn’t appear Paul is not advocating for the end of hostilities against the roundly condemned members of ISIS. Rather, he is merely asserting a simple but essential truth about our system of government: Process matters.

I believe the President must come to Congress to begin a war… It must be declared and made valid, or it must be ended. Congress has a duty to act, one way or the other.

While it is true that we live in a time that exposes our nation to swift attacks on a grand scale, this reality does not justify the manner in which President Obama is circumventing the constitutional prerogative of Congress. Indeed, 90 days was ample time for the President to situate a small number of forces on the ground, carry out targeted airstrikes, and prepare a request to Congress to authorize military force. Yet no such request has been submitted.

Obama is not the first President to engage in this realm of constitutionally questionable behavior, but the implications of his continued insistence on going it alone in nearly every aspect of his Presidency — foreign and domestic — threatens to undermine the very framework of the nation’s structure of governance.

George Washington University law Professor, Jonathan Turley, recently called attention to the President’s cavalier attitude toward constitutionally imposed limitations on his exercise of power.

The problem with what the president is doing is that he’s not simply posing a danger to the constitutional system. He’s becoming the very danger the Constitution was designed to avoid. That is the concentration of power in every single branch.

This Newtonian orbit that the three branches exist in is a delicate one but it is designed to prevent this type of concentration…We have what many once called an imperial presidency model of largely unchecked authority.

If, as Paul suggests, Congress can put pressure on President Obama to seek authorization for use of force against ISIS (a proposition that likely would receive bipartisan support), they may be able to carve an inroad to reclaiming authority the Executive branch has been usurping for decades. For this to happen, however, Congress must assert itself. Something it has been reluctant to do over the years.

Indeed, if Congress is unable to risk its constitutional capital on an issue that would likely enjoy broad agreement across the political spectrum, will they risk a constitutional showdown in the face of executive overreach on an issue like immigration? Healthcare?

Paul framed his argument primarily as a plea for intellectual honesty from elected conservatives (i.e., if you oppose executive overreach in causes you disfavor, you must remain opposed to it in even in  causes you favor). But make no mistake, this same intellectual honesty should be demanded of the litany of Democrats who opposed the executive overreach of President Bush, among other recent Republican Presidents.

Ending the presidential war against ISIS and replacing it with a constitutionally valid authorization of force is an opportunity for Congress to reassert its increasingly waning relevance in a bipartisan manner.

If authorization must be delayed until the new Republican majority takes control, it should be one of their first orders of business. It will send a message to the American people that this Congress is committed to the preservation of our delicate system of checks and balances and, by extension, the rights of the American people those checks and balances were instituted to protect.


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