Andrew Napolitano on Obama's Justifications for Fighting ISIS


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On the lawfulness of Obama's proposed war with ISIS, the president has painted himself into a corner, argues Andrew Napolitano. Last year, he quite properly recognized that the Authorization for Use of Military Force (AUMF)—a statute enacted by Congress in 2002 to permit President George W. Bush to use the military to track down, capture, or kill all persons or organizations that planned the attacks of 9/11—cannot apply to organizations that did not exist at the time of 9/11, of which ISIS is one.

That leaves the president with two remaining alternatives, explains Napolitano. One is the War Powers Resolution—but that only applies to military invasions of 180 days or fewer. Obama's military advisers have told him he cannot achieve his objective in 180 days. They also have told him he cannot achieve his objective by the use of air power alone. 

The remaining mechanism for starting a war is to follow the Constitution by seeking a congressional declaration of war. But Obama has not yet asked for such a declaration. Why not?