Obama’s Surprising War Powers Legacy
We have an essay in The New Republic titled Obama, Not Bush, Is the Master of Unilateral War. It argues that President Obama, ironically in light of his own lofty rhetoric about lodging war decisions with “the people’s representatives” in Congress, has through his practices created new precedents that push outward the boundaries of unilateral presidential powers to initiate military conflict.
The Obama administration’s war powers pronouncements – backed
Published by The Lawfare Institute
in Cooperation With
We have an essay in The New Republic titled Obama, Not Bush, Is the Master of Unilateral War. It argues that President Obama, ironically in light of his own lofty rhetoric about lodging war decisions with “the people’s representatives” in Congress, has through his practices created new precedents that push outward the boundaries of unilateral presidential powers to initiate military conflict.
The Obama administration’s war powers pronouncements – backed up by actions – have included broad unilateral powers to launch humanitarian interventions; a narrow reading of the War Powers Resolutions’ limits so as not to apply to large-scale air strikes; and a stained reading of the 2001 AUMF that extends it to justify a new phase of the war against al Qaida. These legal these moves go hand-in-hand with (or stem from) the Obama administration’s decisionmaking approach to military force that is ad hoc and disorderly, emphasizes air strikes over other military strategies, and fails some basic tests of leadership.
We maintain that Obama’s precedents “will constitute a remarkable legacy of expanded presidential power to use military force.” And we conclude, in part:
These developments raise the stakes for what Obama does with his final two years in office, and whether his legacy will stand for something more than political expediency on war powers issues. Now that it is clear American forces will be fighting transnational terrorist organizations well into the future, will the president finally engage Congress in a serious way to establish a durable legal framework? Or will he continue to formulate ad hoc, unilateral responses as each legal issue related to war powers arises? Obama’s legacy will look quite different if, after the midterm elections, he seeks and receives congressional authorization for the use of force against IS, especially if he also works with Congress on a framework statute that updates the 2001 AUMF to deal with the many emerging threats around the world in a principled, transparent manner with prudent limits. The president has always seemed to want to avoid doing anything that would place his fingerprints on extending the “war on terrorism.” But his fingerprints are all over such an extension already. His legacy would be significantly improved if he embeds that extension in a new legislative framework that is respectful of the separation of powers.
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
Matthew Waxman is a law professor at Columbia Law School, where he chairs the National Security Law Program. He also previously co-chaired the Cybersecurity Center at Columbia University's Data Science Institute, and he is Adjunct Senior Fellow for Law and Foreign Policy at the Council on Foreign Relations. He previously served in senior policy positions at the State Department, Defense Department, and National Security Council. After graduating from Yale Law School, he clerked for Judge Joel M. Flaum of the U.S. Court of Appeals and Supreme Court Justice David H. Souter.
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