Obama’s Illegitimate War On ISIS And The Collapse Of America’s Separated Powers

Adam Bates Policy Analyst, Cato Institute Project on Criminal Justice
Font Size:

September was a bad month for one of America’s most cherished political traditions. The U.S. Constitution separates the powers of the federal government into three distinct branches in order to safeguard against too much power being accumulated by any one person, body, or court. The shenanigans of the U.S. government over the past several weeks have shown conclusively that those safeguards have withered to nothing.

First and foremost, President Obama launched what seems to be the single most illegitimate war in modern American history. It’s still not entirely clear where the authority for starting new wars in Syria and Iraq comes from, but it’s certainly neither the Constitution nor the sitting Congress. Without identifying any tangible U.S. interests in either country, the administration is already talking about the campaign in terms of “years” and planning to charge the whole thing to Uncle Sam’s maxed out credit card.

Far from standing up for itself against this executive overreach or even asserting control of the government’s purse strings as commanded by the Constitution, the reaction of Congress was simply to stick its collective fingers in its ears and go home, leaving a handful of indignant, principled legislators like Justin Amash wondering what just happened, and compelling former congressmen like Tom Campbell to beg Congress to assert some modicum of its Constitutional responsibility.

If Barack Obama enshrining for all time the primacy of the executive branch represents a coup against the Congress and the courts, it’s an impressively bloodless one. One supposes the conflict between the understanding that another Quixotic Middle Eastern campaign against an amorphous enemy is doomed to fail and the desire to avoid being seen as soft on ISIL in an election year makes it preferable to decide nothing and go home. Maybe the news that the initial phase of the war was to destroy billions of dollars of our own weaponry was the tip-off. This is Barack Obama’s war, let him be held accountable. The logic is plain, but so are the implications for any kind of limiting principle on the president’s capacity to unilaterally charge the country into war.

But Congress hasn’t stopped at ceding one of its fundamental powers to the executive branch. Many of its members, led by Senator Ted Cruz and his citizenship-stripping bill, are constantly endeavoring to undermine the power and legitimacy of our third branch of government, even while breathlessly accusing President Obama of the very same.

The national security hawks have long crusaded to keep people accused of terrorism-type crimes (which is a term of art that now means something like “any crime committed by a Muslim”) out of Article III American courts. The desire to avoid the strictures of due process while exploring the “dark side” led the Bush administration to  station suspected terrorists offshore on the rationale that American courts had no jurisdiction there. After the Supreme Court waylaid that assertion, the argument changed to the similarly laughable assertion that American prisons were incapable of securing such vicious criminals and that American courts were incapable of securing convictions. The data tells a very different story. Among terrorism suspects who do end up in the American court system, escapes are minimal and convictions are nearly guaranteed, including a major case just last week involving al-Qaeda spokesman Sulaiman Abu Ghaith being sentenced to life in prison. So what’s the fear?

The newest iteration of this effort to keep the administration of justice out of the justice system is Senator Cruz’s recent bill to summarily revoke the citizenship of anyone found to be associated with ISIL. Sen. Cruz’s justification for the bill was a “simple” question:

“The question is very simple: would any reasonable person want an American who is right now in Iraq, who is right now training with ISIS, who is right now taking up arms, who is right now participating in crucifying Christians, who is right now beheading children, who [has] right now participated in beheading two American journalists, who is right now standing arm-in-arm with virulent terrorists who have pledged to take jihad to America — would anyone of good conscience in either party want that person to be able to come back and land in LaGuardia airport with a U.S. passport and walk unmolested onto our streets?”

One problem: the State Department has the power to revoke the passports of American citizens suspected of crimes without eradicating the citizenship of the suspect, as it proved when it famously revoked the passport of NSA leaker Edward Snowden, who remains a U.S. citizen. So if we dispense with the passport argument for stripping citizenship away from accused terrorists, then what’s left? Aside from base political grandstanding by a presidential candidate, the obvious explanation is that removing the citizenship of suspected terrorists will make it more difficult for them to have their rights enforced in American courts.

Coming from the same segment of the political class that constantly rails against Barack Obama for flaunting the role of the judiciary, it all just adds up to one inescapable conclusion: the bipartisan consensus to sideline the courts and endlessly enhance the power of the president has far more troubling implications than any terrorist organization.

For their part, the courts themselves have all too happily punted their constitutional authority. From ruling that an American’s right not to be targeted and killed is a non-justiciable political question to rubber stamping FISA proceedings, the “weakest branch” has gladly renewed its grip on that designation.

Earlier this year, and amid the sounds of crickets, Barack Obama established for himself and every future president the authority to summarily assassinate American citizens. Now he claims for himself and his successors the unilateral authority to start wars without any stated U.S. interest, without any specific goals, timetables, or even budget restrictions. Congress would rather go home and campaign than control the national purse, and the court system languishes both out of misplaced deference for the power of the executive and the endless efforts by the legislature to defang it.

Perhaps we should be in awe of how long the separate branches of the U.S. government lasted, rather than shocked at their collapse, but the implications of the implosion are far grimmer for the future of American government than anything going on in the Levant.