Constitutional War Initiation and the Obama Presidency
American Journal of International Law, (2016) Forthcoming
33 Pages Posted: 29 Aug 2016 Last revised: 19 Nov 2016
Date Written: August 25, 2016
This essay assesses the constitutionality of President Obama's uses of military force. It uses two baselines -- the Constitution's original meaning, and the practice of U.S. presidents between the end of the Vietnam War and the beginning of the Obama presidency. Although President Obama has been criticized for expanding the president's unilateral powers to use military force, this essay concludes that these claims may overstate. Taken as a whole, the legacy of the Obama administration may be to decrease rather than expand the war initiation powers of the presidency.
Specifically, this essay considers President Obama's use of military force under four headings: (1) the use of force against the Al Qaeda terrorist organization and its affiliates; (2) the use of force against the Islamic State; (3) the use of force against the Qaddafi government in Libya; and (4) the threatened use of force against the Assad government in Syria. It notes that the President has principally justified the first two as authorized by statute -- and, at least in the case of the Islamic State, through very aggressive readings of the authorizing statute. While aggressive statutory readings may expand the presidency's flexibility in using force, they do not expand the presidency's claims to independent constitutional power. Indeed, to the extent aggressive statutory readings substitute for aggressive claims of independent authority, they may be seen to undercut arguments for independent authority.
With respect to Libya, this essay agrees with widespread critical commentary that the President claimed independent war initiation authority beyond the powers conveyed by the original Constitution and beyond powers established by modern consistent and widely accepted presidential practice. However, it notes several limiting features of the Libya episode as a precedent for future action. Moreover, it notes that the Libya episode may be balanced by subsequent events with respect to Syria, in which the President declined to use unilateral force against the Assad regime.
Keywords: war powers, presidential power, executive power, declare war, war initiation, al Qaeda, Libya, Islamic State, ISIS, Syria
JEL Classification: K33
Suggested Citation: Suggested Citation