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.