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

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  • Congress Declares War, Not the President

    Clip: Debaters examine America's intervention in Libya and why Congress must have the power to both defund and declare wars.

  • ISIS, Taliban, Al-Qaeda: Who Are We at War With?

    Clip: Debaters look at the president's draft of the Authorization for Use of Military Force (AUMF) and question if ISIS can be connected to the 9/11 attacks.

Debate Details


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 “The President shall be Commander in Chief.” But Article I provides that “The 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?

The Debaters

For the motion

Gene Healy

VP, Cato Institute & Author, The Cult of the Presidency

Gene Healy is a vice president at the Cato Institute. His research interests include executive power and the role of the presidency, as well as federalism... Read More

Deborah Pearlstein

Asst. Prof., Cardozo Law & Fmr. Dir., Law & Security Program, Human Rights First

Deborah Pearlstein joined the Cardozo faculty in 2011 following her tenure at Princeton’s Law and Public Affairs Program at the Woodrow Wilson School... Read More

Against the motion

Akhil Reed Amar

Professor of Law, Yale University

Akhil Reed Amar is Sterling Professor of Law and Political Science at Yale University, where he teaches constitutional law at both Yale College and... Read More

Philip Bobbitt

Professor, Columbia Law School & Lecturer, Univ. of Texas at Austin

Philip Bobbitt is Herbert Wechsler Professor of Federal Jurisprudence at Columbia Law School, the director of its Center for National Security, and... Read More

Where Do You Stand?

For The Motion
  • Article I of the Constitution gives Congress the sole power to _declare war._ The president_s unilateral military action threatens perpetual war and violates the democratic separation of powers, transparency, and civic participation.
  • The President does not have authority under the 2001 AUMF to engage in hostilities against ISIS, which is neither al Qaeda nor an _associated force._
  • Currently, ISIS does not pose an imminent threat to the U.S. and therefore neither falls under the president_s Article II power to defend the U.S. as commander-in-chief nor the War Powers Resolution.
Against The Motion
  • Invested with the powers of commander-in-chief, the president has constitutional authority to engage in hostilities to protect national security.
  • The 2001 AUMF (and by some accounts the 2002 Iraq AUMF) authorizes the president to use U.S. military force against terrorist threats.
  • The Constitution must be interpreted alongside historical precedent. Formal declarations of war are few and far between in U.S. history, while executive action and legislative acquiescence to hostilities have created robust common law.
  • The 21st century has brought a rapidly changing context of global actors, situations, and strategies, which have fundamentally changed the way we go to war.

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The Research

The Research

U.S. War Powers

David Lerman
February 11, 2015

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

Statement from Senior Administration Official

Provided to The New York Times
September 12, 2014

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

Obama, Not Bush, Is the Master of Unilateral War

Jack Goldsmith and Matthew Waxman
October 14, 2014

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>

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