In his terrific no-holds-barred op-ed, "Obama's Betrayal of the Constitution," in today's New York Times, Yale University law professor Bruce Ackerman argues that the president is vastly exceeding his constitutional authority to wage war.
From the op-ed:
PRESIDENT OBAMA's declaration of war against the terrorist group known as the Islamic State in Iraq and Syria marks a decisive break in the American constitutional tradition. 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. …
Mr. Obama may rightly be frustrated by gridlock in Washington, but his assault on the rule of law is a devastating setback for our constitutional order. His refusal even to ask the Justice Department to provide a formal legal pretext for the war on ISIS is astonishing.
Since ISIS poses a new problem for the president, the War Powers Resolution of 1973 requires him to seek a new mandate from Congress. The resolution, enacted over President Richard M. Nixon's veto at the end of the Vietnam War, requires the president to obtain congressional assent within 60 days of commencing "hostilities"; if he fails, he must withdraw American forces within 30 days.
The administration gave Congress the requisite notice on Aug. 8 that it had begun bombing ISIS, and so the time for obtaining approval runs out on Oct. 7. But Mr. Obama and his lawyers haven't even mentioned the War Powers Resolution in announcing the new offensive against ISIS — there is no indication that he intends to comply with this deadline…
He is acting on the proposition that the president, in his capacity as commander in chief, has unilateral authority to declare war.
In taking this step, Mr. Obama is not only betraying the electoral majorities who twice voted him into office on his promise to end Bush-era abuses of executive authority. He is also betraying the Constitution he swore to uphold.
Even the Times' editorial board today agrees that President Obama is acting unconstitutionally:
In May 2013, Mr. Obama argued in a speech that the 2001 law passed after the Sept. 11, 2001, attacks to wage war against Al Qaeda had become obsolete and ought to be repealed.
"Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don't need to fight, or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states," Mr. Obama said at the National Defense University.
Now the White House is repudiating that thinking and making the perplexing argument that the 2001 law authorizing the use of force in Afghanistan and the 2002 law authorizing force in Iraq give Mr. Obama the power to battle the Islamic State in Iraq and Syria, known as ISIS and ISIL, indefinitely and anywhere in the world. They most certainly don't.
Article 2 of the Constitution states: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States," but Article 8 states: "The Congress shall have Power … To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."
The president is acting in flagrant disregard of his oath to defend the Constitution. If war is to be waged, then he must persuade Congress to authorize it.