Barack Obama

Obama's War on ISIS Betrays the Constitution, Asserts New York Times Op-Ed


White House

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.

NEXT: CIA Triples Estimate of Size of ISIS

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  1. Notice it’s now “Mr.” (they call me MISTER!!) Obama now?

    1. The NYT employs honorifics in front of peoples’ names as a matter of style in all of their articles.

        1. They call me the Space Cowboy.

          1. They call me Doctor Worm.

            1. I’m not a real doctor, but I am a real worm.

              1. “The name’s not Barry; It’s Barack — Mr. Obama, if you’re nasty.”

      1. Well, I don’t read the NYT enough to be certain, but you’d that that with all the water they’ve carried for the guy they’d use “President”, “Lightbringer” or something else besides the rather plain “Mr.”.

        1. Look, they only recently changed Master to Mister, so give them a break.

        2. They use “Mr.” and “Mrs.” generally for everybody from what I remember, regardless of their position in life.

  2. Looks like the Grey Lady is with the terrorists.

    1. And racist, to boot.

  3. The Constitution is calling it quits anyway, it’s tired of being everyone’s bitch.

    1. That’s what happens to most suicide pacts.

  4. I’ll spare you all: don’t read the comments.

    1. Some of them are pretty reasonable. At least the Times top picks seem to be.

    2. was feeling masochistic, my head hurts from the derp beating

      1. The current most liked

        is a trusted commenter DC 17 hours ago

        This is delusional. Congress wants only to criticize, they have no interest in taking responsibility for anything. Rise to the occasion? Hoot! What planet do you live on? The President has sworn to defend the Constitution. What does that mean if not defend the country when threatened while Congress repeals Obamacare for the 83rd time?

        Is there anyone outside of the cone of derp known as the NYT comments section who doesn’t think the Republicans wouldn’t vote to approve this?

        1. That’s the amazing thing about this: It would sail through Congress.

          If, I suppose, you are trying to set the precedent that the Prez don’t need no Congress to go to war, though, this is a good one to do it with.

          Because Congress and the public are far too stupid to avoid the trap of confusing “You don’t think the President has the authority to go to war against terrorists” with “You don’t want to go to war against terrorists.”

          Pick a popular issue, not an unpopular issue, to expand your power.

          Congress’s sole authority to declare war is now officially a dead letter.

          1. It would sail through Congress but make a lot of Democrats cast very uncomfortable votes. This is totally about the Democratic Party’s unease with this and to ensure that if it goes south no one up for election in 2016 can be held responsible.

            1. I can’t think of any other reason, because I agree that it would sail through Congress.

              I know this is too esoteric for voters, but it’s high time we reined in these presidents (especially this one) on the use of force. It’s one thing for a president to repulse or respond to an attack, but it’s quite another for him to just go to war without getting Congressional authorization first. It’s right there in the Constitution.

              1. I know this is too esoteric for voters, but it’s high time we reined in these presidents (especially this one) on with the use of force.

                Too soon?

                Or, too late?

                1. I suppose it may come to that if things keep going this way, but I’d like to think that the idea of limited government is not totally dead yet. I could be wrong.

                  1. Pretty sure you’re wrong, Pro Lib.

                    The current gestalt is that we have a federal government with plenary power, limited only on a very small handful of issues (free speech, mainly) where we have been granted privileges.

                    For now.

        2. Shorter version: those damn elected representatives are still trying to repeal the last horrible thing Obama managed to accomplish even as he’s trying to get a new horrible initiative off the ground!

          Why don’t they just advocate abolishing Congress altogether and having Obama wear a black, hooded robe all the time?

          1. Hahaha, Congress “trying.” Good one.

          2. As Tom Friedman and others have pointed out, we’d be better off with a government like China has. Since they’re able to “get things done” without all this ugly debate and stuff.

          3. Why’s it gotta be a black robe??!?

  5. To be sure, the War Powers Act can’t rewrite the Constitution. Congress made a big mistake agreeing to allow presidents to use force without a formal declaration (whatever form it might take) from Congress.

    Consider all of the consequences or war–the huge costs, in money, resources, and lives, the reputational hit we can take, the new enemies we often create, etc.–isn’t it our right to have such hostilities debated and fully considered by the most representative body we have, as flawed as it is? That’s certainly what the Constitution says.

    1. The Constitution had to say that. Remember that it was written before modern travel or communication. If the country had ever been attacked by a foreign power, the President needed the power to respond and defend the country immediately without having to call a session of Congress.

      1. For 99% of the cases in recent history where military force has been needed, there’s been no reason to evade Congress. Not in the legal sense of repelling attacks.

        Interestingly, a military response to Benghazi without congressional authorization would have been legal, to the extent it was to defend the diplomatic compound and the personnel there.

        1. It totally would have been legal and he refused to do it.

          1. It’s not his fault–he has a pathological aversion to legal acts.

  6. The funniest thing about this is that the Republicans in Congress would authorize this if he asked. So the usual Lefty dodge of “Obama has no choice but to act unilaterally because of the lunatic racist tea baggers in Congress just won’t do anything” doesn’t work here.

    Obama is not asking for Congressional authorization here because it would put Democrats in a bad position and a good number of them would vote against it. So do the Obamabots think that the Democrats in Congress are just racist extremists who want Obmaa to fail?

    1. it *is* sort of fun to watch the schizoid dilemma here for the uber-progs.

    2. I mean, they are tripping over themselves to support this move by Obama, which is true.

      That said, I can see them sitting on the authorization while demanding something be done right now, to be honest, because it’s not that Congress doesn’t do anything, it’s that our reps don’t want to take responsibility for anything.

      Also, who exactly are the Obamabots that support this action? The NYTimes editorial board is anti. The Kossacks are anti. The Nation is anti. At the very least, they’re all insisting this go to Congress.

      This has nothing to do with Red vs. Blue. This have everything to do with the Executive simply taking power and Congress not caring.

      1. Congress wouldn’t sit on it. At least the Republicans wouldn’t. They are for the most part gung ho to do this.

        And as for who supports this, read the NYT comment section accusing Ackerman of being delusional and worse. There are a lot of Obama dead enders out there.

  7. Let’s hear it for the Great Imperator … Barak the Mendacious, Slayer of Constitutions, Renamer of Religions and Ingorer of Congress.

  8. Liberals Re-Discover Half-Decent Reason For Constitution: Plan to Discard it As Soon as Possible Once This Argument is Won

    1. Wait until about late October of 2016 and there is a real danger of the Republicans taking control of the White House and Congress. They will be singing halleluiah in the Constitutional limited government chorus at the top of their lungs.

  9. In response to the second NYT editorial critical of his unilateral warmaking, President Obama ordered the drone assassination of Ackerman’s son and grandson.

    1. He does claim to be very good at killing people.

      1. Something he shares with many other Nobel Peace Prize winners.

        1. Except for Gandhi. . .wait a second.

  10. So… any word on when the 2001 AUMF will be rescinded? Why didn’t it have a sunset clause? Or any kind of restriction? At this rate, it will be used in 2032 as an excuse to attack Costa Rica…

    1. er, sorry, should say at the end: without Congressional approval…

    2. It’s an improper delegation of congressional power at this point, regardless of what anyone says.

      1. Who has standing to challenge that? I’m legitimately curious?

        It’s foreign policy which the courts generally don’t get involved in.

        It’s messing with the president’s commander in chief’s power, which courts also don’t want to get involved in.

        As for a congressman individually suing on behalf of the institution, Congress voted for it.

        It was improper for sure. But how the F do we do anything about it? The people don’t want another war but that obviously isn’t important to the people of either party in DC.

        1. It doesn’t help when Congress doesn’t protect its own prerogatives, which it could easily do. Impeachment, defunding, and a number of other options are available, but they’ll just act like the NFL on concussions.

          Standing in my mind is bullshit when government acts unconstitutionally, as any of us should have it. In practice, I’m not sure with this kind of case. I assume a soldier might be able to raise it–illegal deployment is illegal, right?

          1. If a soldier were to try this would it have to be in military court?

            1. I don’t think so–they’re citizens, too, and the military court wouldn’t seem a proper venue. Then again, I know jack about military law.

              1. Is the President, as commander in chief, subject to UCMJ?

          2. I assume a soldier might be able to raise it–illegal deployment is illegal, right?

            I don’t know if that’s been litigated, to be honest. My first inclination is to say that, even if he has standing, it will still fail because of the Commander in Chief Clause to Article II.

        2. Not that this does any good now, but I’m liking more and more the model where one chamber only passes laws and another only repeals them.

        3. Congress can create laws granting standing to certain plaintiffs. Not sure why they couldn’t write a law granting themselves standing to sue the executive branch in certain instances; though currently, it’d never get to the floor of the senate, and the Constitutional Law Scholar In Residence at 1600 Penn Ave would veto it anyway.

  11. To establish what sort of character Ackerman is and how far Obama has gone to alienate the left, enjoy this description of his latest book courtesy HUP.…..0674057036

    Bruce Ackerman shows how the institutional dynamics of the last half-century have transformed the American presidency into a potential platform for political extremism and lawlessness. Watergate, Iran-Contra, and the War on Terror are only symptoms of deeper pathologies. Ackerman points to a series of developments that have previously been treated independently of one another?from the rise of presidential primaries, to the role of pollsters and media gurus, to the centralization of power in White House czars, to the politicization of the military, to the manipulation of constitutional doctrine to justify presidential power-grabs. He shows how these different transformations can interact to generate profound constitutional crises in the twenty-first century?and then proposes a series of reforms that will minimize, if not eliminate, the risks going forward.

    The book aims to begin a new constitutional debate. Americans should not suppose that Barack Obama’s centrism and constitutionalism will typify the presidencies of the twenty-first century. We should seize the present opportunity to confront deeper institutional pathologies before it is too late.

    (being fair, some of the description is consistent with libertarianism)

    1. This shows how brutal the 16 Dem Primaries are going to be. People like Ackerman hate Hillaries guts. But Hillary has all of the money and a good chunk of the Dem operative media behind her. The real far left is not going to just fall in line because its her turn. The knives are going to come out.

    2. “…Barack Obama’s centrism and constitutionalism….”

      Words no longer have any meaning whatsoever. Let’s all just start talking Duckspeak.

  12. This would be news if Obama ever had bothered checking the Constitution. Where was the NYT editorial board for the rest of his tap dance on the spirit and letter of the document?

    1. Cheering him on, if memory serves.

  13. If only there were some enforcement mechanism, some way for the Congress to indict and try the President when he breaks the law….

  14. Surely the Times will now call for impeachment, right?

    1. Why yes, that would seem inevitable, right? I mean, usurping power, that’s Impeachment 101, isn’t it?

    2. Dateline, Sat Sept 13:

      NYT calls for impeachment of President…..Bush.

  15. Hat tip, anyone?…..nt_4765782

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