Congress needs to approve ISIS attack

President Barack Obama is legally and politically wrong in not seeking congressional approval for the continued bombing of ISIS. On Sept. 10, Obama, in a nationally televised addressed, pledged that the nation will use its military powers to destroy ISIS, the Islamic State of Iraq and al-Sham. The president was clear that this will involve a protracted effort by the United States and its allies against ISIS to prevent its atrocities, and its expansion and consolidation of power. But the War Powers Resolution, a federal law, requires that the use of military force beyond 60 days must be approved by Congress.

The U.S. is already deeply involved in a military action against ISIS. The U.S. airstrikes against ISIS began Aug. 8 and over 138 have occurred since then. On Sept. 7, the U.S. initiated new airstrikes in an effort to keep the Haditha Dam in western Iraq in the hands of that country's army. Obama declared in his address that the goal is to "degrade and destroy" ISIS. This obviously will require a long military effort. ISIS appears well-funded and well organized and not vulnerable to an easy defeat.

There is no doubt that that ISIS is a frightening threat in the region and internationally. Its extremist views have been on display with beheadings, including in areas where it gains control, of American journalists, and most recently of British aid worker David Haines. When it conquers new territories, ISIS mandates that the population convert to its form of Islam or be killed. Massacres of local populations have been widely reported, as have rapes of women in conquered areas. Women are required to wear clothing covering every area of their body and girls are no longer allowed to attend school.

Obama initially launched the airstrikes to protect the Yazidi minority in the mountains of Iraq that faced slaughter at the hands of ISIS. The airstrikes are also to defend the Kurdistan Regional government, an American ally in northern Iraq with control over substantial oil fields. In his Sept. 10 address, Obama made clear that goal of the American military effort is not simply to stop the expansion of ISIS, but to destroy it. The larger concern is that ISIS will launch terrorist acts against the Europe and the U.S.

Although new on the world stage, few deny that ISIS is truly disturbing. There has been virtually no criticism of the airstrikes. But that does not answer the question as to their continued legality.

The War Powers Resolution, a federal statute adopted in 1973, provides that the president shall terminate the use of military force in hostilities after 60 days unless Congress "has declared war or has enacted a specific authorization for such use of United States Armed Force." The purpose of the War Powers Resolution is to ensure that two branches of government are involved before the U.S. gets involved in a protracted conflict.

Not surprisingly, since 1973, every president has argued that the War Powers Resolution is an unconstitutional restriction on the president's constitutional authority as "commander-in-chief." But Article I of the Constitution gives the power to declare war to Congress and this authority is undermined if the president can wage war without any approval from Congress. More generally, the genius of the Constitution is that it generally takes approval of two branches of government for any significant action is taken. That is exactly what the War Powers Resolution accomplishes.

There is no doubt that the War Powers Resolution applies in this circumstance. The law applies any time U.S. troops "are introduced into hostilities" or "into the territory, airspace or waters of a foreign nation, while equipped for combat." The military action against ISIS obviously fits within this definition.

The Obama administration has said that congressional approval of the military action is not necessary because it fits within the Authorization for the Use of Military Force adopted after 9/11. But that is a specious claim. ISIS did not exist then and the Authorization for the Use of Military Force must not be seen as an indefinite blank check for the president to use force against all forms of terrorism. A 13-year-old resolution authorizing military force against a different enemy cannot be construed to authorize this military action.

The solution is for Congress to pass a new resolution authorizing military action against ISIS. Even in these deeply divided times, partisanship should yield to the need to fight a dangerous, well-equipped enemy. It is notable that even those who generally espouse an isolationist foreign policy, such as Republican Sen. Rand Paul, have urged action against ISIS. Indeed, especially at this deeply polarized time, it is important to look for opportunities for unity and for Congress and the president to communicate together to the American people that they can act together when necessary for the country's security.

Congress should be concerned about not giving the president unlimited authority. For example, the resolution should be for a limited period of time and expire on a designated date. Before extending it, Congress could consider whether the airstrikes are making a difference and whether Obama's approach is proving effective. It is not clear how much difference the airstrikes will make and there is understandably no desire to reintroduce American grounds troops into Iraq.

This summer, the world has watched horrified as ISIS has emerged and engaged in inconceivable viciousness and brutality. Obama rightly decided that the U.S. must act. But the law requires more than a good reason for military action; it demands that Congress approve the continuing use of military force. It should do so immediately.

Erwin Chemerinsky is dean and distinguished professor of law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.