Why We Should Listen to President Obama Rather than Candidate Obama on Unilateral Presidential War Powers
I had the pleasure of participating on a panel a couple of weeks ago on Presidential War Powers, in light of the recent proposal to authorize the use of force against ISIS. The panel was hosted by the New York City Bar Association and chaired by Prof.Jonathan Hafetz of Seton Hall. It included Prof. Ryan Goodman of NYU and Prof. (Lt. Col.) Walter Narramore of West Point. C-Span aired it last night and the video can be found here.
To give you a sense of my talk (which starts at 36:00), here is a brief summary.
In 2008, then-candidate Barack Obama stated that he believed the President cannot constitutionally use military force absent congressional authorization except in response to an imminent attack or threat. But since he has taken office, the President has abandoned this view, most notably in a legal memo from his Justice Department justifying military intervention into Libya. In my view, this shift provides strong evidence that the strict congressionalist view of presidential war powers is untenable. I concede that there may be other limits on unilateral presidential use of force (e.g. congressional prohibitions, long-term interventions amounting to a “war”, etc.) but we should no longer take seriously the strict congressionalist position articulated by Candidate Obama in 2008.