IT'S GOOD TO BE THE KING:

[T]his legalistic wrangling is beside the point. Back in 2011, President Obama used military force against Libya. Unable to rely on the 2001 AUMF or the 2003 AUMF against a government that had nothing to do with al-Qaida or Iraq, Obama relied on his constitutional authority. The administration claimed that the War Powers Resolution did not apply because sending planes to drop bombs and fire missiles at enemy troops did not amount to "hostilities" governed by the war powers act. This was a ludicrous interpretation of the law. It is plain that the president will cite statutes if they exist, but if none do, that won't stop him.

Many commentators just can't get this into their heads. In 2013, President Obama briefly considered using military force against Syria, but when he couldn't obtain international support, he sought an AUMF from Congress.* Even though he explicitly said that he didn't legally need that support, commentators leapt to conclusions. To quote David Rothkopf, just one of many:

Whatever happens with regard to Syria, the larger consequence of the president's action will resonate for years. The president has made it highly unlikely that at any time during the remainder of his term he will be able to initiate military action without seeking congressional approval.

So much for the majesty of the law. As I argued at the time, because the president announced that he could act alone, and that he regarded resort to Congress as optional, "President Obama has reaffirmed the primacy of the executive in matters of war and peace." He went to Congress for political cover, not for legal authority.

Ackerman is right that the Obama administration's reliance on the 2001 AUMF is phony, but he's wrong to say that Obama has broken with American constitutional traditions. That tradition dictates that the president must give a nod to Congress if he can, but otherwise he is legally free to go to war, subject to vague limits that have never been worked out. That's not to say that Congress is helpless. It can refuse to fund a war if it objects to it. But the real constraint on the president's war-making powers is not law, but politics.

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