« The Truth About the Supreme Court's Recess-Appointments Ruling: A Response to Professor Wildenthal
Steven Semeraro
| Main | Philip Hamburger Guest-Blogging at Liberty Law Blog
Michael Ramsey
»

08/07/2014

Ilya Somin on Airstrikes in Iraq
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: President Obama authorizes limited airstrikes in Iraq against ISIS.  On the constitutional question:

Be that as it may, anything more than extremely limited air strikes would be an act of war that requires congressional authorization under the Constitution. ...

Although ISIS is a nonstate entity, that does not mean that large-scale military action against it cannot qualify as a war. The US campaign against al Qaeda is surely a war, as is Israel’s conflict with Hamas, even though neither is a formally recognized government. Indeed, there are obvious parallels between ISIS and Hamas, as both are terrorist organizations that control a substantial territory despite lack of international recognition as states. At this point, the territory controlled by ISIS is likely significantly larger than that controlled by Hamas in Gaza.

I agree.  While I have doubts about when a non-state entity (like al Qaeda) becomes state-like enough to have a war with it, ISIS seems to have crossed that line since my prior post on the matter.  Indeed, I'm not sure it's now a non-state entity at all -- it claims to be a state, and is a non-state only because we (and others) don't recognize it.  But that can't be the test for declare-war purposes.

(There is, of course, also the argument that the President already has congressional approval thorugh the Iraq AUMF).