The Legal Question

by Dave Schuler on August 8, 2014

Ilya Somin critiques the legal justifications for President Obama’s use of force against ISIS in Iraq:

US airstrikes ISIS in Iraq have now begun. There may well be good moral and strategic rationales for the president’s action. But there are still serious questions about his legal authority to order it. There are several possible legal justifications for the airstrikes. But none can justify more than very limited military action without additional congressional authorization.

The Obama administration has not yet put forward an official legal rationale for its actions. Cornell professor Sarah Kreps predicts that it will probably rely on the president’s inherent powers as commander in chief of the armed forces under Article II of the Constitution. If it is adopted, this theory is vulnerable to the objections I made in my last post. The commander-in-chief Clause makes the president the highest ranking general and admiral, but does not give him the power to initiate war without congressional authorization.

Perhaps the president would not need congressional authorization if all he seeks to do is protect US personnel already in Iraq from attack. But The President’s speech last night clearly indicates that he intends to go beyond this, as he also emphasized the need to prevent ISIS’ attempted genocide of the Yazidi minority. Michael Ramsey, a leading academic expert on constitutional war powers, reaches a similar conclusion (see here and here).

As I noted in my earlier post, congressional authorization might not be required for very small-scale airstrikes that are not extensive enough to qualify as a war. So far, I don’t think that threshold has yet been crossed. But there is a real chance it will be soon.

The whole post is worth reading. Reader’s Digest version: as I said in my previous post, the president is not on particularly solid legal ground here.

{ 3 comments… read them below or add one }

... August 8, 2014 at 10:51 pm

It’s funny to see leftists and Dems who have been pushing the idea of the broadest possible interpretation of Presidential power suddenly state that the President must obey the strict letter of the law. Why, it’s almost as if they don’t believe a Damned thing they say. (I don’t mean Somin, but rather various anti-war types such as Lee, Blumenthal, Reed, etc.)

Expediency makes for a nice servant, but is a terrible master.

Andy August 9, 2014 at 2:19 am

“The commander-in-chief Clause makes the president the highest ranking general and admiral, but does not give him the power to initiate war without congressional authorization. ”

Well, it’s not that clear-cut. What constitutes a “war” that would require specific authorization from Congress is not defined and is really a political question. Congress always has the option (rarely exercised) to limit Presidential authority or funding for specific operations. In many cases Congress provides consent by funding operations without specifically authorizing them.

Regardless, at this point I think the President is clearly acting consistent with his article II authority. We are nowhere close to, say, Yugoslavia (Clinton) and Libya (Obama), both of which were clearly “wars” against constituted nation-states, or any number of other military actions taken by Presidents over the past 200 years .

However, if the scope of operations and/or mission expands then IMO the President should get Congress on board.

PD Shaw August 9, 2014 at 9:51 am

What legal effect should be read into Congress’ refusal to repeal the 2002 AUMF? Skeptics say Obama is bound by politics to refuse to use the 2002 AUMF. That doesn’t seem very legal. If the President asks to repeal a law, and Congress declines to do so, he is not bound by some unwritten code of honor to act as if the law had been repealed. And why did the Administration want repeal? In order to give Americans confidence that ground forces will not be sent into Iraq.

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