October 16, 2014


Obama, Not Bush, Is the Master of Unilateral War : The president must force Congress to vote on his military powers (Jack Goldsmith and Matthew Waxman, 10/14/14, New Republic)

[O]ne of Obama's legal positions can be viewed as radical against the historical backdrop of steady unilateral presidential expansion of the war powers. Many presidents, and all modern ones, have asserted broad powers to use military force. Obama's legacy of expanding unilateral war powers is nonetheless significant.

War from a Distance. One of Obama's signature policies has been to eschew the heavy footprint wars of his predecessor, and to switch instead to light-footprint war characterized by small forces acting with stealth and a heavy reliance on air power, especially drones. Obama's war powers legacy tracks this policy change.

It is always hard to identify precise limits on presidential war powers because they are so fluid and contextual. But if we take seriously the past precedents and the Obama administration's legal theories, the position of the executive branch now appears to be that the president has the constitutional authority to use force from the air for long periods, possibly supported by special operations forces on the ground, to halt instability and uphold security or human rights treaties, sometimes in the absence even of a self-defense rationale or United Nations or regional security organization support. The executive branch also appears to believe that these things can be done to a great extent without implicating the War Powers Resolution. The president's objectives in crafting these legal doctrines may be worthy, but he has arrogated to himself and future presidents new powers to pursue them militarily.

Ad Hoc Legal Decisionmaking. For all of Obama's lofty rhetoric about the principles of American democracy, his practice on war powers reflects a relentlessly short-term pragmatism. The administration's process for legally justifying unilateral uses of force has been events-driven and disorderly. 

The administration published a legal opinion on the use of force in Libya. Yet as the 60-day deadline in the War Powers Resolution loomed, it scrambled to explain how the use of force could continue. As the New York Times reported, the normally decisive Office of Legal Counsel (OLC), backed by the top Defense Department lawyer, advised the president that the WPR required a cessation of hostilities in Libya; but in a rare move, Obama overrode OLC and relied on advice of his White House counsel and State Department legal advisor to embrace the controversial "no hostilities" theory and skirt the WPR.

In addition, the administration offered imprecise and seemingly changing public legal justifications for the threatened military campaign against Syria and the campaign against the Islamic State. In neither case did it publish legal opinions. Instead, information about legal authorization dripped out in terse statements by the White House Counsel and in anonymous background discussions with journalists.

Failure of Executive Leadership. Another legacy will be Obama's surprising failure to engage Congress and get its clear support for his military campaigns. This happened in Libya in 2011, it almost happened in Syria in 2013, and it happened again when he declined to ask for congressional authorization for the use of force against IS. Obama often talks about working with Congress to obtain its approval, but on his major war powers initiatives, he has not done so.

The president's team has often pled the excuse that Congress will not work with him. It is certainly true that the feckless Congress has been complicit in the president's war powers agenda by its failure to engage in meaningful oversight. But many other presidents have asked for and (after a significant political push) received congressional authorization from an apathetic or skeptical Congress, including ones dominated by the opposite party. For example, President Dwight D. Eisenhower obtained authorizations for force in Formosa (Taiwan) and the Middle East from a Congress controlled by Democrats. President George H.W. Bush did the same for Iraq in 1991.

A difficult Congress is no excuse for a lack of presidential engagement with Congress. "The Constitution is a permanent challenge to presidential leadership," wrote Arthur Schlesinger Jr., the great presidential scholar.

Posted by at October 16, 2014 5:17 PM

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