Rejecting the Bush Comparison: A Response to Goldsmith & Waxman

Jack Goldsmith and Matthew Waxman have written an interesting essay on President Obama’s war powers legacy, boldly titled “Obama, not Bush, is the Master of Unilateral War.” As I have argued about an analogous claim made by Professor Bruce Ackerman, I think that the comparison to President Bush is unfounded and distracts from some interesting and valid concerns that Goldsmith and Waxman point out.

First of all, it is worth noting the specific and limited claim that Goldsmith and Waxman are making. They focus on “the context of initiating war” to argue that President Obama has been more unilateral than President Bush. This leaves aside how the President conducts war—an area where President Bush was famously broad in his interpretations of executive power.

But, even leaving that issue aside, the main evidence that they point to for President Bush being more “respectful of separation of powers” with regards to initiating war is that he obtained Congressional authorization before going into full-scale, boots-on-the-ground-for-years wars in Afghanistan and Iraq. President Obama, on the other hand, has conducted air strikes in Libya and now in Syria and Iraq against ISIL, without specific congressional authorization. However, Goldsmith and Waxman’s comparison between the wars in Afghanistan and Iraq and the operations in Libya and Syria and Iraq seems unfair for at least two reasons.

First, there is a difference between air strikes and full-scale war. Arguing that President Obama has a more expansive view of executive power than President Bush because Bush went to Congress before engaging in full-scale war is unconvincing. No one really thinks that President Obama would send tens of thousands of American troops into another country without Congressional approval. Indeed, as Marty Lederman has explained, the Obama Administration’s apparent view of its unilateral authority to engage in full-scale war is significantly more constrained than the Bush Administration’s—which, in fact, asserted that it had constitutional power to engage in full-scale war without congressional approval.

Second, of the two major examples that Goldsmith and Waxman point to as unilateral war-making, only one of them was done without stated Congressional approval—Libya. With regards to the fight against ISIL, President Obama has been careful to argue that he does have Congressional authorization. Indeed, Goldsmith apparently agrees that he does. While there are reasons to question that claim, this is different than a presidential claim that he has inherent Article II authority to conduct these strikes. Indeed, as I have suggested in response to a similar claim from Professor Ackerman, arguably implicit in the President’s claim that the 2001 and 2002 AUMFs authorize the use of force against ISIL, is a claim that Congress could revoke those authorizations and take away authority for the strikes.

The third example Goldsmith and Waxman use for their claim of President Obama’s unilateralist tendencies in making war is the 2013 Syria example, where President Obama threatened to strike the Assad regime for using chemical weapons against his own people. However, as Goldsmith and Waxman note, the President did not, in fact, take unilateral strikes in that instance. Instead, he went to Congress for approval. This will be a hard precedent for future Presidents to use to justify unilateral force for humanitarian intervention. In fact, rather than setting a precedent for unilateral executive overreach, one might imagine this example being used in the future (rightly or wrongly) by opponents of Presidential power as an example of the limits of inherent executive authority. In any event, if articulations of executive power (without action) are to serve as precedent, the Bush Administration is unlikely to compare favorably with Obama’s.

The fourth example Goldsmith and Waxman invoke, as evidence of the President’s “asserted [] constitutional authority to use force for humanitarian intervention without congressional authorization,” are the President’s strikes against ISIL to protect civilians on Mount Sinjar in Iraq. As Goldsmith and Waxman suggest, the President’s WPR notification to Congress for those strikes mentioned his Article II powers with no mention of statutory authorization. However, these were short-term attacks that occurred at the invitation of the host country and were directed against an organization that the President subsequently clarified he believes is covered by congressional authorization. They hardly set a precedent for broad humanitarian intervention without congressional authorization anywhere in the world.

Goldsmith and Waxman take all these precedents and suggest that “the position of the executive branch now appears to be that the president has the constitutional authority to use force from the air for long periods, possibly supported by special operations forces on the ground, to halt instability and uphold security or human rights treaties, sometimes in the absence even of a self-defense rationale or United Nations or regional security organization support.” But, Goldsmith and Waxman point to only one precedent where the President undertook long term military operations without Congressional approval—in Libya, which was subsequent to a UN Security Council Resolution (and was, at the time of initiation, anticipated to be of short duration). Given how careful the Administration has been to suggest that it had Congressional authority to attack ISIL and the fact that it decided not to partake in strikes against the Syrian government unilaterally without Congressional authorization, this precedent is unlikely to make such claims anything close to a slam dunk for future presidents.

Finally, Goldsmith and Waxman criticize Obama for “ad hoc legal decision making,” regarding war powers that reflects a “relentlessly short-term pragmatism” that has been “events-driven and disorderly.” But can the Obama Administration really be criticized for being more short-term or events-driven in its thinking than the Bush Administration of torture-memo fame? In any event, is it so clear that case-by-case decision-making is worse than grand (potentially overly expansive) theory in this area?

This brings me to what I see as the major flaw in Goldsmith and Waxman’s essay: The comparison of President Obama’s positions to those of the Bush Administration distracts more than it illuminates. Goldsmith and Waxman point out some legitimate concerns and questions regarding how President Obama’s actions might be used as precedents for expanded executive authority in the future. And, there may be something to Goldsmith and Waxman’s point that, precisely because of President’s Obama obvious care in determining his legal authority, precedents generated by his Administration may carry more weight going forward. All of this raises interesting issues of how historical precedent is used or should be used in determining separation of powers law (E.g., Should different administration’s precedents be treated differently? Should claims of authority without action be treated differently than claims of authority accompanied by action?). Moreover, Goldsmith and Waxman seem right in pointing out that President Obama should consider this legacy in his next two years in office, and that involving Congress in the fight against ISIL is a good idea.

But, none of these concerns is particularly illuminated by the fact that President Bush got Congressional authorization from a not-yet-war-weary Congress to invade Afghanistan and Iraq. It is hard to seriously argue that President Obama has a more expansive view of executive authority than President Bush based on this fact (or anything else). Perhaps more to the point, such an argument is not necessary to raise legitimate concerns regarding how Presidential precedents might be used in the highly-contested war powers area in the future. 

About the Author(s)

Shalev Roisman

Acting Assistant Professor of Lawyering at NYU School of Law