A Response to Bruce Ackerman’s NYT Op-Ed on the President’s War Powers

Bruce Ackerman’s Op-Ed in the New York Times today is an interesting read.  In it, he makes some impassioned arguments against the President’s legal justifications for the expanded military campaign against ISIS.  But, what is most startling to read coming from such a harsh critic of President George W. Bush’s legal positions is that Professor Ackerman believes that President Obama’s view of the president’s constitutional power exceeds that of President Bush.

The only problem is that President Obama’s arguments all seem to hinge on statutory—not constitutional—authority.  One imagines that this is, in fact, a very deliberate move on President Obama’s part. The President’s public justification for the expanded military campaign against ISIS relies on the 2001 AUMF that authorized the use of “all necessary and appropriate force against those nations, organizations, or persons” responsible for 9/11.  While this claim certainly has its weaknesses—Marty Lederman has an insightful post on the merits of this argument—it is, importantly, not a claim that he has the inherent Article II authority to attack ISIS without congressional approval.  Indeed, implicit in this argument is that, if Congress were to repeal or modify the 2001 AUMF to exclude ISIS, President Obama would no longer have authorization to attack ISIS.

Of course, it is very possible that the administration’s internal legal rationale—which it has not released publicly—does not depend entirely on statutory authority, but also invokes Article II.  It might, in fact, make two (or, at least two) claims:  First, that the 2001 AUMF authorizes the strikes on ISIS, and, second, even if it does not, the President has inherent Article II authority to authorize those strikes.  However, the president’s repeated claims that ISIS does not, in fact, pose a current threat to the United States would seem to undermine any such inherent Article II authority claims at least based on direct self-defense.

Professor Ackerman also makes much of the President’s seeming sidestepping of the War Powers Resolution, suggesting that this too evinces the President’s purported view that “the president, in his capacity as commander in chief, has unilateral authority to declare war.”  However, again, the President’s sidestepping of the War Powers Resolution— convincing or not—relied on statutory, not constitutional, arguments.   This is true with regards to both the 2011 Libya example and today.  As Professor Ackerman recounts, with Libya, President Obama argued that the strikes did not amount to the “hostilities” that trigger the WPR’s requirements, and, today, he argues that the central requirement of the WPR is satisfied because he already has authorization under the 2001 AUMF.

In short, while Professor Ackerman claims President Obama is stretching the Constitution, it seems the real argument is that he is illegitimately stretching Congressional statutory authority.   While arguably semantic, this seems like an important distinction.  The early Bush administration was criticized for arguments that sought to justify powers based on allegedly inherent constitutional authority.  What so concerned many scholars and activists was the implication that the President had seemingly boundless inherent war powers that could not be constrained by Congress.  President Obama’s arguments, on the other hand, rely on statutory interpretations, that—while admittedly sometimes counterintuitive—at least implicitly, give Congress the opportunity to change the statute and constrain the President’s power.   Perhaps a better title for Professor Ackerman’s Op-ed, would be “Obama’s Betrayal of Congressional Will.”   It’s less catchy, but perhaps more accurate. 

About the Author(s)

Shalev Roisman

Acting Assistant Professor of Lawyering at NYU School of Law