President Obama’s plan to defeat the Islamic State is already showing signs of falling apart (see, i.e. “Arabs Give Tepid Support to U.S. Fight Against ISIS” and “U.S. Pins Hope on Syrian Rebels With Loyalties All Over the Map“).
But today’s real game-changer has to be renowned Yale Law School constitutional scholar Bruce Ackerman‘s impassioned New York Times op-ed opus, in which he argues that by unilaterally seizing the power to declare a new war, Obama is “betraying the Constitution he swore to uphold.” Ackerman writes:
Nothing attempted by his predecessor, George W. Bush, remotely compares in imperial hubris.
Mr. Bush gained explicit congressional consent for his invasions of Afghanistan and Iraq. In contrast, the Obama administration has not even published a legal opinion attempting to justify the president’s assertion of unilateral war-making authority. This is because no serious opinion can be written.
If you haven’t already, go read every word.
In an addendum posted on the Balkinization legal blog, Ackerman also notes Congress’ explicit refusal in its 2001 Authorization for Use of Military Force (AUMF) to “grant presidents a free-hand to wage preemptive war against future terrorist threats.”
The New York Times editorial board, meanwhile, focuses its ire on Congress, for being “perfectly willing to abdicate one of its most consequential powers”:
The cowardice in Congress, never to be underestimated, is outrageous. Some lawmakers have made it known that they would rather not face a war authorization vote shortly before midterm elections, saying they’d rather sit on the fence for a while to see whether an expanded military campaign starts looking like a success story or a debacle. By avoiding responsibility, they allow President Obama free rein to set a dangerous precedent that will last well past this particular military campaign.
David Nakamura and Sari Horwitz write in the Washington Post that lawyers at the Justice Department’s Office of Legal Counsel — the OLC is the same office, though no longer with the same staff, that produced criminally bad legal opinions justifying torture — “signed off on the White House’s conclusion that President Obama had sufficient legal authority to approve airstrikes in Syria.”
You want to read what they said? Good luck with that.
It is unclear whether the Justice Department provided the White House with a detailed, written opinion or relayed its interpretation of the law orally.
The Associated Press’s Stephen Braun initially weighed in with a laughably balanced he-said-she-said story — “The White House says…” “Critics say…” — but an updated version was more authoritative, noting:
The administration’s tightly crafted legal strategy has short-circuited the congressional oversight that Obama once championed. The White House’s use of old authorizations as grounds for the growing air war has generated a chorus of criticism that the justifications are, at best, a legal stretch.
Georgetown Law Professor Marty Lederman published a statement from a senior administration official describing Obama’s rationale on Wednesday night. The 2001 AUMF applies, the official argued, because the Islamic State is “the true inheritor” of Osama bin Laden’s legacy, the official said.
But the Islamic State is more like a rival than an inheritor. And Cardozo law professor Deborah Pearlstein was among several legal bloggers saying the administration’s argument is fatally flawed: “The AUMF does not plausibly extend to ISIL,” she wrote.
[F]or all the uncertainty and challenge of the threat ISIL poses, the difficulty of the policy decisions that must have been involved here, the politics of the impending elections, the complexity of some legal questions in this field – this legal question is one of the easy ones. As a matter of law, the President needs additional authority from Congress. Asserting he has it already is wrong.
In Time, Jack Goldsmith, who at one point ran the OLC under Bush, calls Obama’s expansion of presidential power “breathtaking“:
The largest irony here is that President Obama has long hoped to leave a legacy of repealing the Bush-era authorization and declaring the “war” against al Qaeda over. “I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal” the 2001 law’s mandate” he said in a speech last May at the National Defense University. “I will not sign laws designed to expand this mandate further,” he added, before insisting that “history” and “democracy” demand that “this war, like all wars, must end.”
President Obama never did engage Congress to refine the 2001 law. The violent reality of the Islamic State has quickly belied the supposed demands of history and democracy. And the President, all by himself, has now dramatically expanded the 2001 mandate.
Adding to the irony, of course, is that this is coming from Goldsmith.
American University law professor Jennifer Daskal blogs for Just Security about “Democracy’s Failure“. She writes:
So how did this happen? The answer seems to be politics over law. By all accounts, Congress did not want to vote on any authorization for conflict before the November elections. After all, it is easier not to make hard decisions. It is easier not to have to explain a potentially tough vote to constituents in the coming election. And it is much easier to criticize the President for not having a strategy than actually adopting a strategy oneself.…
Let’s hope come November, Congress finds its spine.
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