Wednesday, September 24, 2014

War Powers "As If"

Stephen Griffin

Now that the NYT editorial board has weighed in on President Obama's use of war powers re ISIS, I feel I can immodestly claim to have provided a better analysis of the current situation re war powers than anyone else in a Constitution Day talk given at Tulane.  The talk is both student and journalist-friendly, so please take a look if you wish.

To boil things down as much as I can, too much commentary has focused on treating Obama's use of war powers "as if" it was occurring in a judicial forum, rather than politically as a matter of interbranch deliberation. Doing the latter inevitably means taking into consideration that we are right before the congressional elections.  Deliberating before an election is rarely a good idea -- that's how we got the 2002 Iraq war resolution!  Yet the NYT scores the Congress for failing in its constitutional responsibilities, "shamelessly ducking a vote."  Yes, they should duck it.  They haven't got the time to do a proper review before the election, particularly if what we should be interested in is a new AUMF.  That will take time and more clarity about the situation in the Middle East and both are what Congress doesn't have right now.

As far as the legal commentary, too many legal scholars are too worried about what Obama is claiming re the previous AUMFs.  They seem to think that these claims might come back to haunt us as "precedents."  But we are not in a judicial forum (nor are we ever likely to be) when it comes to the use of military force.  It is therefore a conceptual mistake to think that the forms of judicial argument or what judges have said in past opinions like Youngstown can help us make sense of this situation.  We surely need to think as constitutionalists, but mindful of the constitutional order that applies to foreign affairs and in light of the fact that we are, after all, dealing with the "political" branches.  So talk of bad precedents and Congress acting irresponsibly is not helpful.  It won't help the country get anywhere it wants to go.

I do agree with much current commentary that we badly need a legal review of Obama's war authority with a view to drafting a new AUMF.  That would be all to the good.  So far I see no sign that Congress is truly interested in drafting one.  But as I say in my Tulane talk, there is no doubt that Obama could render a service to his country in his final two years in office by putting an AUMF on the national agenda when the new Congress is seated in 2015.

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