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

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.