How to force Congress to vote on Obama's war against the Islamic State

Fifteen years ago, little-known Republican Rep. Tom Campbell bucked the White House and congressional leaders of both parties to force a vote on President Clinton’s air strikes against Serbia. And then he brought one of the relatively few lawsuits in U.S. history against a president under the 1973 War Powers Resolution — for going to war without explicit authority from Congress.

Today, the libertarian-minded law professor scolds his former colleagues for ducking what he describes as their constitutional duty to vote on President Obama’s new war against the Islamic State militant group. And Campbell says even just one determined lawmaker could force a reluctant Congress to take a stand.

“This is Congress running way from its responsibility,” the soft-spoken Campbell told Yahoo News in a telephone interview. “Is there anything left to the Constitution’s requirement that it’s the Congress’s role to declare war?”

The White House says it would welcome a vote authorizing Obama’s war on the Islamic State, but aides also say Obama has all the legal authority he needs and warn that the president would not accept restrictions from Congress on the kinds of operations he could order.

Republican House Speaker John Boehner says he’d call lawmakers back from the campaign trail to vote — if only Obama would formally draft a resolution authorizing the use of military force (in Washington-speak, an AUMF) and submit it to Congress. Leaders of key committees say they are looking to vote on authorization after the November election, or perhaps in 2015 when a new Congress convenes, a vague calendar that hardly guarantees action.

It’s not altogether surprising to Campbell that everyone seems to be dodging the issue.

In April 1999, Campbell’s determination to put the Serbia air strikes to a vote was an embarrassment for lawmakers, who showed more appetite for grandstanding over Clinton’s impeachment a few months earlier than for sending a clear message about war.

First, Republican Speaker Denny Hastert and Democratic Minority Leader Dick Gephardt asked Campbell not to force the issue.

“I went ahead anyway,” Campbell says.

In a series of April 28 votes, the House voted 249 to180 to require Clinton to get Congressional approval to insert ground troops in the conflict.

Then lawmakers rejected a symbolic Democratic resolution, backed by Hastert, expressing support for the air strikes, defeating the measure in an unexpected 213 to 213 vote. (Passing the measure requires a majority vote. The Senate had passed the measure 58 to 41 in late March.)

Then the House rejected a declaration of war against Yugoslavia by a vote of 427 to 2. (One of the two who voted for war, Rep. Joe Barton of Texas, is still in Congress.) Finally, lawmakers defeated a resolution calling for an immediate withdrawal of all American forces from the conflict by a 290 to 139 vote.

“The House today voted no on going forward, no on going back, and they tied on standing still,” White House spokesman Jake Siewert said in response. Clinton ignored the House results, while Congress went ahead with funding for the Serbian operation.

Campbell then led a bipartisan group in a lawsuit based on the War Powers Resolution, but an appeals court ruled that they lacked the legal standing to bring the suit, and the Supreme Court declined to hear the case.

So should someone in Congress force a vote now, and would he or she fare any better?

The starting place for any action is still the War Powers Resolution, a law born of congressional anger at the way successive presidents expanded the bloody conflict in Vietnam.

No president has ever recognized the statute as setting constitutionally valid limits on the commander in chief’s war-making abilities. But Campbell relied on the War Powers Resolution to force votes, at least, on two kinds of measures — a declaration of war and a concurrent resolution demanding that the president withdraw American forces from hostilities.

The law enables a single lawmaker to avoid Congress’s usual, grinding legislative process and fast-track those resolutions. But to benefit from that accelerated process, a declaration of war would need to be introduced within 30 days of the president formally notifying Congress of military action. In this case, the clock started ticking on Sept. 23 and will run out after the November election.

After a lawmaker introduces those resolutions, the text goes to the relevant committees — House Foreign Affairs or Senate Foreign Relations. The War Powers Resolution requires the committees to report the resolutions to the floor for a full vote quickly: Within six days for the declaration of war, within 15 days for the withdrawal.

That’s a potential choke point in the process. If the committees don’t act, a majority of lawmakers would have to vote to move the measures directly to the floor. If a majority does not agree to do so, the measures could languish in committee, though chairs could face immense public pressure not to obstruct a vote on something as important as a declaration of war.

Another potential choke point: A majority of lawmakers could vote to change the rules under which the House operates, with the goal of disabling the entire mechanism of the War Powers Resolution.

And if all those hurdles were overcome, what impact would such a vote have?

“Assuming the president would get approval, and I think he would, if we go to war with Congress on board, it has two salutary effects,” Campbell said. “First, it prevents a lot of carping around the edges, where you have members of Congress criticizing the conduct of the war. It’s easy to criticize if you’ve been pushed to the margins. ‘You didn’t even ask me’ and so on.”

Second, Congress could try to limit an operation in size, scope or duration. Obama has declined to set a timetable for the conflict, but lawmakers could say “come back in a year, or a year and a half” for a new resolution.

“Some might say ‘you’re telling the enemy when we are withdrawing,’” Campbell said. “Not at all; what you’re doing is preventing a huge mission creep.”

But that would require a president to accept limits on the executive branch’s war-making power or a Congress willing to impose its will by cutting off funds for military action — and both are extremely unlikely.

In the end, Campbell acknowledges that the main effect of a vote, even if a majority in Congress demands that the White House withdraw American forces from conflict, would probably be symbolic.

“In practical terms, a president who has ignored the [War Powers Resolution] will likely ignore the concurrent resolution, should it pass,” he said. “So the practical force of this provision is to get members of Congress on the record.”