Is Obama Abusing the Constitution to Combat ISIS?

Is the increased threat of ISIS a justifiable reason to increase executive power? Or is the president going too far?

Barack Obama takes the Constitution very seriously, he’ll have you know. “I’ve studied the Constitution as a student, I’ve taught it as a teacher,” he proclaimed shortly after his inauguration, in a speech full of passive-aggressive potshots at President Bush’s “deciderist” approach to executive power. “I took an oath to preserve, protect and defend the Constitution,” Obama said, “we must never, ever, turn our back on its enduring principles for expedience sake.”

One of those enduring principles is reflected in the Constitution’s allocation of war powers: “in no part of the Constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department,” Madison wrote in 1793. Were it otherwise, “the trust and the temptation would be too great for any one man.”

If Obama ever respected that principle, he grew out of it as he “grew in office.” Even before the current debacle in Iraq, the president’s record on war powers was one of legal sophistry in the service of raw power—an object lesson in why you should never let constitutional-law professors near the Oval Office. But now, he appears poised to plumb new depths.

In his nationally televised address Wednesday night, the president announced that “we will degrade, and ultimately destroy” ISIS with “a systematic campaign of airstrikes,” that will likely include targets in Syria, will definitely require new boots on the ground, but will certainly not drag us “into another ground war in Iraq,” don’t worry. Our “kinetic military action” in Libya was supposed to last “days, not weeks,” but the administration is making no such promises this time—the fight against ISIS may take years

Still, “I have the authority to address the threat,” Obama maintained, with or without new authorization from Congress. Where does the president suppose that authority lies?

It can’t be found in Article II. That article’s commander-in-chief clause, as Hamilton explained in Federalist 69, just makes the president “first General and admiral” of America’s armed forces—and generals and admirals don’t get to decide whether and with whom we go to war. And, contra John Yoo, the legal architect of Bush’s Terror Presidency, unilateral warmaking authority can’t be conjured out of the penumbras and emanations of Article II, Sec. 1’s grant of “the executive power.” Virtually no one from the Founding era seems to have understood the clause in that way. As Professor Michael Ramsey puts it:

“Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities. Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton.”

Or as candidate Obama put it, back when “Hope” bloomed and the world was young:

“The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

That’s not the situation we’re in, by the president’s own admission: “we have not yet detected specific plotting against our homeland,” he said Wednesday, but “if left unchecked, these terrorists could pose a growing threat beyond that region—including to the United States.”

President Obama’s case for preventive war with ISIS, ironically enough, takes a page from President Bush’s 2002 National Security Strategy: “America will act against such emerging threats before they are fully formed.” (NB: If the threat’s not “fully formed,” that means you have time to go to Congress for a vote.)

As it happens, John Yoo recently told Buzzfeed that “Obama has adopted the same view of war powers as the Bush administration.” But you’re not going to hear this president cop to that charge—hence this week’s desperate search for legal cover outside of Article II, under authorizations for the use of military force (AUMFs) from prior Congresses.