Unconstitutional Wars, Unintended Results

Last week President Obama became the fourth consecutive American president to announce the bombing of Iraq. Obama’s actions dovetail perfectly with American sentiment. According to a recent Washington Post poll, 71% of Americans support bombing the radical insurgents who have overrun Iraq. 65% favor extending the aerial attacks into Syria and 58% support arming the Kurdish forces who are fighting the Islamic State – alternately called ISIS and ISIL – in Iraq. Americans want action and Obama is taking it.

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The Constitution and Just War

As President Obama authorizes US airstrikes in Iraq and future strikes anticipated for Syria, it’s important to first ask whether or not the Constitution is being followed. The invasion in Iraq and Afghanistan, and drone strikes in multiple other countries has increased terrorism through blowback. Destabilized areas have become a hot bed for violent extremism.…

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ISIS and War Powers

Recent events in Iraq seem to pose a challenge to a limited view of presidential war powers.  Suppose, the argument runs, a fast moving threat to U.S. national security arises quickly, at a time when Congress is not meeting.  Containing the threat depends on a fast response — but if the President must get Congress’ approval to act, action will come too late.  

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The President Does Not Have the Constitutional Power to Order Air Strikes in Iraq

The answer, in my view, depends on whether the U.S. can be “at war” with a non-state actor such as the Sunni rebel force in Iraq.  Here’s my analysis: (1) The President has executive power and commander-in-chief power, and thus can direct the military and conduct foreign relations, so long as he does not do…

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David Barron and Martin Lederman on Congress’ Power to Limit War

In my post on Congress’ power to declare a limited war, I noted that the leading scholarship in support of Congress’ power is by Saikrishna Prakash (here).  I should also have added as well the outstanding two-part article “The Commander in Chief at the Lowest Ebb” by David Barron and Martin Lederman in the Harvard Law…

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Congress’ Power to Authorize Limited Hostilities

Does Congress have constitutional power to authorize limited strikes on Syria?  In his otherwise outstanding post on Congress’ war powers, Michael Stokes Paulsen suggests that the answer might be no:

… [I]t is fruitless, and equally unconstitutional, for Congress to authorize the use of force but attempt to micro-manage how it is to be used (as some versions of the proposed resolution now being debated would do). As noted, the conduct of war, once authorized, lies in the hands of the president. Congress has the power to declare war, and the president does not. But the president has the power to conduct war as Commander in Chief—and Congress does not.

I’m not sure which versions of the resolution are meant here, but the principal proposal — (a) limiting the use of force to degrading Syria’s chemical weapons capacity, and (b) limiting the use of force to air power — seems well within Congress’ power to declare a limited war.

The leading article on this subject is by Saikrishna Prakash in the Texas Law Review: The Separation and Overlap of Military Powers.  From the abstract:

Absent from war-powers scholarship is an account of when war and military powers separate and when they overlap. Making arguments sounding in text, structure, and history, this Article supplies such a theory. Numerous English statutes and practices help identify the meaning of the Constitution’s war and military powers. Additional insights come from the Revolutionary War and the half-dozen or so wars fought in the three decades after 1789. In those early years, Congress micromanaged military and wartime operations. Presidents (and their advisors) acquiesced to these congressional assertions of power, expressing rather narrow understandings of presidential power over war and military matters. Using early history as a guide, this Article argues that the Constitution grants Congress complete control over all war and military matters. Some authorities, such as the powers to declare war and establish a system of military justice, rest exclusively with Congress. Military authorities not granted exclusively to Congress vest concurrently with the President and Congress, meaning that either can exercise such powers. In this area of overlap, where congressional statutes conflict with executive orders, the former always trump the latter. Tempering Congress’s ability to micromanage military operations are significant institutional and constitutional constraints that typically make it impossible for Congress to move military assets on a far-off battlefield. In sum, the Constitution creates a powerful Commander in Chief who may direct military operations in a host of ways but who nonetheless lacks any exclusive military powers and is thus subject to congressional direction in all war and military matters.

While I would not go quite as far as Professor Prakash (see here), I agree that Congress has substantial ability to set the goals and limits of the use of force in connection with an authorization of war. 

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