Bruce Ackerman is a professor of law and political science at Yale and the author of “The Decline and Fall of the American Republic.”

With the war on ISIL exploding into Syria, President Barack Obama has yet to explain why he has the constitutional authority to wage it in the first place. Two weeks ago, anonymous White House sources claimed that Obama’s new initiative was covered by old congressional authorizations for military campaigns against Al Qaeda in 2001 and Saddam Hussein in 2002. But these initial efforts at justification provoked a chorus of professional criticism coming from all points of the political spectrum.

The administration has responded with silence. Neither the Justice Department’s Office of Legal Counsel nor the White House Counsel has issued a serious legal opinion presenting its side of the argument. This represents a profound breach of the rule of law. Worse yet, Congress’ failure to address the constitutional issues during its regular session threatens to create a legal vacuum which only the courts will be in a position to resolve. Unless extraordinary steps are taken, the result will be the worst of all possible worlds, in which a problematic Supreme Court decision only exacerbates the ongoing crisis of constitutional legitimacy.


The War Powers Act requires the president to gain congressional consent within 60 days of launching a new military campaign; if he fails, the act requires him to terminate his initiative within 30 days. The administration started the time clock on Aug. 8 when it began attacking ISIL. This makes Oct. 7 the deadline for congressional approval and Nov. 6 the termination date for further attacks if he fails to gain the requisite consent. The administration asserts, however, that these requirements don’t apply since the 2001 and 2002 Authorizations for Use of Military Force can be stretched to cover the military problems of 2014.

Last week, Congress refused to confront the merits of these much-criticized claims or to take the up-or-down vote required by the act. It chose instead to adjourn for two months of electioneering and take up the matter more seriously in a lame-duck session in December. These vague assurances from leadership, however, don’t modify the Nov. 6 deadline established by the War Powers Act. They serve only to deflect attention from the looming prospect of judicial intervention once the statutory clock ticks beyond the deadline requiring an end to the campaign against ISIL.

Until Nov. 6, judges will predictably refuse to consider the large legal questions raised by the current impasse. The Constitution grants them jurisdiction only over “cases or controversies,” and they have traditionally insisted that litigants have a distinctively personal interest before they will attempt to resolve a dispute. But after Nov. 6, many members of the armed forces will satisfy this basic requirement for legal standing. They will be personally involved in supporting the ISIL mission, and will rightly want to know whether they are engaged in an illegal war. If Congress remains absent, and the president remains silent, the stage will be set for the courts to fill the constitutional vacuum.

This isn’t the time to speculate on how they will handle this responsibility. Perhaps the judges will declare the entire matter a “political question,” leaving it to the two branches to battle it out over the coming months and years. Perhaps they will follow the broad professional consensus and declare that Obama must gain the consent of Congress for his new military intervention. Or perhaps they will follow the advice of super-presidentialists and declare unconstitutional the entire effort by Congress to limit the war-making powers of the commander in chief.

Whatever the ultimate decision, only one thing is clear: months or years will pass before an increasingly bitter controversy ultimately will be resolved by the Supreme Court. During this time, the escalating legal conflict will deeply erode the constitutional legitimacy of the ongoing ISIL campaign.

Now is the time for senators and representatives to act decisively to prevent this dismal cycle. The War Powers Act provides them with the tools they need for a more constructive response. It expressly creates an extraordinary procedure they can use to call Congress back to Washington to allow it to “take appropriate action” on a presidential military campaign. Under its provisions, a 30 percent minority of the House and Senate suffice to request that the president summon a special session.

Such a bottom-up campaign has never been attempted during the 40 years since the War Powers Act was passed in 1973. But it is entirely appropriate this time around, especially since it will force the president to end his silence and make a serious defense of his present position as he tries to convince rebellious senators and representatives that a special session is unnecessary.

Once again, it is impossible to predict the outcome of a renewed constitutional dialogue between the president and Congress. But it is vastly preferable for the branches to hammer out a solution than invite the Supreme Court to resolve the large questions of war and peace presently confronting the nation.