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Steve Contorno
By Steve Contorno February 19, 2015

Republican lawmaker claims Congress has never set limits on a commander-in-chief

Months after the Islamic State emerged as a threat in the Middle East, President Barack Obama has asked Congress for authorization to use military force against the radical Islamist group.

An administration proposal now before Congress would limit the use of force to three years. The legislation also says it is not authorizing the use of "armed forces in enduring offensive ground operations."

In something of an odd-bedfellows pairing, some hawkish Republicans prefer giving the president even wider leeway to go after the Islamic State, sometimes called ISIS or ISIL.

Rep. Adam Kinzinger, R-Ill., is among those who say Congress should ease restrictions from the proposal, known as an authorization for the use of military force.

"This would be the first time Congress would place limits on the commander-in-chief's ability to be commander-in-chief," Kinzinger said on the Feb. 15, 2015, edition of ABC’s This Week with George Stephanopoulos. "We don't own his limited strategy. The president has to make that decision, which is why I think he needs the broad power to do what the commander-in-chief does."

Republicans wanting to give Obama more power? That caught us by surprise. So we took a closer look at Kinzinger’s statement.

Congress, the presidency and war: A brief history

Military historians we spoke with took umbrage with Kinzinger’s statement, noting a longstanding tension between the legislative and the executive branches over military powers. In fact, the conflict goes back as far as the Founding Fathers.

In the Constitution, Congress was granted the power to declare war and raise and maintain an army and a navy. At the same time, the president was deemed commander-in-chief. Those two roles have competed for centuries.

The issue prompted a 1800 Supreme Court case, Bas vs. Tingy, in which the court distinguished between a declared war — a status that the court ruled grants sweeping powers to the president — and military action authorized by other legislative methods.

Essentially, the decision said that "in a declared war, the president's actions are unrestricted, except as restricted by the laws of war," said Anthony Arend, professor of government and foreign service at Georgetown University. By contrast, "in a war declared by other statutory means, Congress can set limits."

The last time Congress declared war was World War II. Since then, military operations have been conducted through authorizations for the use of military force (and, in some instances, without congressional approval). Congress used those opportunities to impose limits on how the president could use force.

For example, the 1983 resolution that provided authority for President Ronald Reagan to send American troops to participate in a multinational peacekeeping force in Lebanon set a time limit of 18 months.

Then, in 1991, Congress authorized the use military force to oust Iraqi forces from Kuwait. But the agreement stipulated that President George H.W. Bush first had to show congressional leaders that he had used "all appropriate diplomatic and other peaceful means to obtain compliance by Iraq with the United Nations Security Council."

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And congressional intervention into the president’s powers as commander-in-chief doesn’t begin or end with authorizations. Other types of legislation have played a role as well.

In the 1930s, the Neutrality Acts limited President Franklin D. Roosevelt’s ability to aid allied nations fighting in World War II. In 1973, Congress passed a law to block any future military operations Southeast Asia unless Congress approved them, essentially ending the United States’ engagement in the Vietnam War. Later, Congress rebuked President Gerald Ford’s request for military aid to Vietnam.

The most significant and lasting Vietnam-era congressional response came in 1973, when Congress overrode President Richard Nixon’s veto of the War Powers Resolution. The act required presidents to notify Congress within 48 hours of sending troops into harm's way and mandated authorization from Congress if military force is to be used beyond 60 days.

The Supreme Court has never weighed in on the constitutionality of the War Powers Resolution, but every president since it passed "has taken the position that it is an unconstitutional infringement by Congress on the president’s authority as commander in chief," the Congressional Research Service has written. Despite this, presidents have tended to abide by key aspects of the law for pragmatic reasons, hoping to appease Congress and present a united front before utilizing military force.

Finally, Congress can use (and has used) the power of the purse to restrict the president’s use of military force. For example, in 1993, Congress prohibited funding for a continuous presence of U.S. forces in Somalia.

Kinzinger’s response

When we took this to Kinzinger’s office, spokeswoman Catherine Gatewood said the congressman "was talking in the context of fighting terrorism and radical jihadism. In the current war, Congress has never taken a position to limit the president’s ability to fight terrorism, so to do so in his fight against ISIS would be a change in policy."

The far more general nature of the statement suggests to us that this is an after-the-fact reinterpretation of his words. But even if we take it at face value, it’s not clear to us that Kinzinger is accurate.

He has a point that the 2001 joint resolution that authorized the use of force against al-Qaida was quite broad. In fact, it didn’t even name al-Qaida as the target, but rather gave the president the power to use force against "nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons." That’s pretty open-ended.

Still, even that resolution restricted the efforts to terrorist groups or countries directly or tangentially involved in the planning and execution of the 9/11 attacks. This limitation has at least forced debates on whether Obama needs authorization to continue military action in Syria against the Islamic State.

"It is a bit of a stretch to say (the 2001 authorization) covered ISIS, but you could make a case for that," said Richard Stoll, an expert on international conflict at Rice University. "It is better if we’re going to use military force to say, ‘I, as president, may have the power to do this, but it is better if Congress approves it, because it tells the world we stand together.’ "

And it is not as though Congress has been absent from the debate on anti-terrorism strategy. For example, President George W. Bush in 2006 signed legislation passed by Congress to outlaw use of torture against terrorism suspects who were sent to Guantanamo Bay.

"A lot of the action, when you think about congressional checks on war powers, happens behind closed doors," said William Howell, an American politics professor at the University of Chicago and author of While Dangers Gather: Congressional Checks on Presidential War Powers. "There are things Obama and Bush might very well like to do that neither of them followed up on, assuming Congress would intervene and make life difficult for them. When you think about Congress as a player on debates on war, it’s not just resolutions and legislation; a lot of this stuff is anticipatory."

Our ruling

Kinzinger said that the authorization for use of military force now pending in Congress would represent "the first time Congress would place limits on the commander-in-chief's ability to be commander-in-chief."

A plain reading of that statement finds it problematic. Time and time again, Congress has intervened to rein in presidents from taking certain types of actions or continuing combat longer than lawmakers want. To do this, Congress simply has to use the power it is granted in the Constitution, authority that has been affirmed and reaffirmed by courts for centuries.

Even the narrower interpretation of the statement that Kinzinger’s office stands by — that it only refers to the war on terrorism  — doesn’t hold up. We rate the statement False.

Our Sources

ABC This Week, Transcript, Feb. 15, 2015

Email interview with Catherine Gatewood, spokeswoman for Rep. Adam Kinzinger, Feb. 18, 2015

White House, "Letter from the President -- Authorization for the Use of United States Armed Forces in connection with the Islamic State of Iraq and the Levant," Feb. 11, 2015

White House, Joint Resolution "To authorize the limited use of the United States Armed Forces against the Islamic State of Iraq and the Levant," Feb. 11, 2015

Government Printing Office, Joint Resolution "To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States," Sept. 18, 2001

Government Printing Office, "Authorization for Use of Military Force Against Iraq Resolution of 2002," Oct. 16, 2002

National Archives, Constitution of the United States, accessed Feb. 18, 2015

Congressional Research Service, "War Powers Resolution: Presidential Compliance," Sept. 25, 2012

Congressional Research Service, "Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications," March 17, 2011

Email interview with Anthony Arend, professor of government and foreign service at Georgetown University, Feb. 17-18, 2015

Email interview with Lance Janda, professor of History and Government at Cameron University, Feb. 17-18, 2015

Phone interview with William Howell, professor of American politics at University of Chicago, Feb. 18, 2015

Phone interview with Richard Stoll, international conflict scholar at Rice University, Feb. 18, 2015

Boston.com, "Bush could bypass new torture ban," Jan. 4, 2006

Justia.com, "Bas vs. Tingy," accessed Feb. 18, 2015

PolitiFact, "Joe Lieberman says Obama ‘had the legal authority’ to strike Syria without congressional approval," Sept. 12, 2013

PolitiFact, "Charlie Rangel says last president to seek congressional permission for war was FDR," April 5, 2011

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Republican lawmaker claims Congress has never set limits on a commander-in-chief

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