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The President Has Exceeded His Constitutional Authority by Waging War Without Congressional Authorization

The President Has Exceeded His Constitutional Authority by Waging War Without Congressional Authorization

The BriefGet Up To Speed
Presented in partnership with The Richard Paul Richman Center at Columbia University and the National Constitution Center. 

The President has launched a sustained, long-term military campaign against the Islamic State of Iraq and the Levant. But did he have constitutional power to do so? The Constitution carefully divides the war powers of the United States between Congress and the President. Article II provides that '€œThe President shall be Commander in Chief.'€ But Article I provides that '€œThe Congress shall have Power '€¦ To Declare War.'€ In this case, Congress has not declared war; the President ordered the attacks unilaterally. Did he exceed his authority and violate the Constitution?
FOR

An article on Obama’s expanding war powers and his legacy. For more from Jack Goldsmith on this topic, listen to his related <a href="http://www.lawfareblog.com/2014/11/the-lawfare-podcast-episode-99-jack-g... target="_blank">Lawfare podcast.</a>

Tuesday, October 14, 2014
Jack Goldsmith and Matthew Waxman

The president is subverting the Constitution—and America’s latest undeclared war in the Middle East is just the latest example.

Monday, November 10, 2014
Rand Paul

The war against the Islamic State is now illegal. The War Powers Resolution of 1973 gave President Obama 60 days to gain consent from Congress and required him to end “hostilities” within 30 days if he failed to do so. This 90-day clock expired last night.

Friday, November 7, 2014
Bruce Ackerman

The Constitution is clear on war powers, and yet Congress may not weigh in until next year.

Monday, September 29, 2014
W. James Antle III

Obama, who has spent much of his presidency seeking to wean the United States off a perpetual state of war, is now putting forward unjustifiable interpretations of the executive branch’s authority to use military force without explicit approval from Congress.

Thursday, September 11, 2014
The New York Times Editorial Board

Taken together with the congressional leadership’s shrug, Obama has stripped the veneer off a contemporary fact of American national security: presidents make war on their own, and congresses acquiesce.

Wednesday, September 10, 2014
Spencer Ackerman

Some commentators have begun the discussion about whether existing domestic authority would support such uses of force against ISIS, and so we thought it important to join (and reorient) the conversation along two dimensions: (1) to show how implausible the claims are that the 2001 (9/11) and 2002 (Iraq) AUMFs might provide the President with authority to use force against ISIS in Iraq; and (2) to use this debate as an illustration of the dangers of preemptively authorizing the use of force in the absence of specific facts that warrant it.

Tuesday, June 17, 2014
Jennifer Daskal
AGAINST

Statement describing the Obama Administration’s theory regarding President Obama’s legal authority to order a campaign of airstrikes against ISIS.

Friday, September 12, 2014
Provided to The New York Times

The President had the constitutional authority to direct the use of military force in Libya because he could reasonably determine that such use of force was in the national interest. Prior congressional approval was not constitutionally required to use military force in the limited operations under consideration.

Friday, April 1, 2011
Office of Legal Counsel

John Yoo, National Review, September 11, 2014 Congress recognized the president’s traditional authority to use force to prevent future attacks on the United States — and there seems to be no doubt that the Islamic State seeks to carry out such attacks.

Thursday, September 11, 2014
John Yoo

If the president wants to strike them in Syria, he doesn't need to wait for authorization from Congress.

Thursday, September 4, 2014
Joseph Lieberman

Entering military conflicts without a declaration of war from Congress isn't unconstitutional—but legislators must step forward and set limits and objectives.

Tuesday, February 17, 2015
Garrett Epps
Background

In practice, presidents usually get their way, and the process often revolves around political power as much as legal considerations.

Wednesday, February 11, 2015
David Lerman

This report lists hundreds of instances in which the United States has used its Armed Forces abroad in situations of military conflict or potential conflict or for other than normal peacetime purposes. The instances differ greatly in number of forces, purpose, extent of hostilities, and legal authorization.

Thursday, January 15, 2015
Barbara Salazar Torreon

This report provides historical background on the enactment of declarations of war and authorizations for the use of force and analyzes their legal effects under international and domestic law.

Friday, April 18, 2014
Jennifer K. Elsea and Matthew C. Weed
LEGAL FRAMEWORK

An overview of war powers as enumerated in the Constitution, including <a href="https://www.law.cornell.edu/constitution/articlei#section8" target="_blank">Article I, Section 8</a> and <a href="https://www.law.cornell.edu/constitution/articleii#section2" target="_blank">Article II, Section 2</a>.

Wednesday, December 31, 1969
Legal Information Institute

An overview of the War Powers Resolution of 1973, including links to constitutional provisions, legislation, judicial decisions, and more.

Friday, February 28, 2014
Library of Congress

AUMF authorizes the President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.

Tuesday, September 18, 2001
Signed by the President

The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

Wednesday, October 16, 2002
Signed by the President
PROPOSED AUMF AGAINST ISIS/ISIL

Although existing statutes provide me with the authority I need to take these actions, I have repeatedly expressed my commitment to working with the Congress to pass a bipartisan authorization for the use of military force (AUMF) against ISIL. Consistent with this commitment, I am submitting a draft AUMF that would authorize the continued use of military force to degrade and defeat ISIL.

Wednesday, February 11, 2015
Proposed to Congress by the President

The news that the Obama Administration is seeking formal authorization from Congress to wage war against the Islamic State isn’t unexpected.

Wednesday, February 11, 2015
John Cassidy

The White House’s proposed legal authorization for a war against the Islamic State may haunt U.S. foreign policy for years to come.

Thursday, February 12, 2015
Ryan Goodman

An important foundational consensus can be reached — across branches and parties — on five core principles that should guide any new or revised authorization of force related to counterterrorism.

Friday, November 14, 2014
Jack Goldsmith

It may well be that the importance of these resolutions is fading over time as presidents lay bare the fiction that congressional consent is really essential. Still, the resolutions do retain functional importance in several respects.

Friday, November 14, 2014
Benjamin Wittes
ISIS AND AL QAEDA

The Security Council requires the United States and other governments to consider ISIL an associated force of Al-Qaida for some purposes, and this may encourage governments to do so for other purposes.

Monday, September 15, 2014
Martin Scheinin

Al-Qaeda formally dissociated itself from its onetime affiliate in Iraq and Syria on Monday, culminating months of feuding and exposing the dwindling influence of the group’s leadership over an emerging new generation of radicals.

Monday, February 3, 2014
Liz Sly

The Islamic State of Iraq and the Levant (ISIS) used to have a different name: al Qaeda in Iraq.

Tuesday, December 16, 2014
Zack Beauchamp

U.S. officials said administration lawyers are increasingly concerned that the law is being stretched to its legal breaking point, just as new threats are emerging in countries including Syria, Libya and Mali.

Wednesday, March 6, 2013
Greg Miller and Karen DeYoung