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Is Obama Abusing the Constitution to Combat ISIS?

September 12, 2014 in Economics

By Gene Healy

Gene Healy

Barack Obama takes the Constitution very seriously, he’ll have you know. “I’ve studied the Constitution as a student, I’ve taught it as a teacher,” he proclaimed shortly after his inauguration, in a speech full of passive-aggressive potshots at President Bush’s “deciderist” approach to executive power. “I took an oath to preserve, protect and defend the Constitution,” Obama said, “we must never, ever, turn our back on its enduring principles for expedience sake.”

One of those enduring principles is reflected in the Constitution’s allocation of war powers: “in no part of the Constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department,” Madison wrote in 1793. Were it otherwise, “the trust and the temptation would be too great for any one man.”

If Obama ever respected that principle, he grew out of it as he “grew in office.” Even before the current debacle in Iraq, the president’s record on war powers was one of legal sophistry in the service of raw power—an object lesson in why you should never let constitutional-law professors near the Oval Office. But now, he appears poised to plumb new depths.

Is the increased threat of ISIS a justifiable reason to increase executive power? Or is the president going too far?”

In his nationally televised address Wednesday night, the president announced that “we will degrade, and ultimately destroy” ISIS with “a systematic campaign of airstrikes,” that will likely include targets in Syria, will definitely require new boots on the ground, but will certainly not drag us “into another ground war in Iraq,” don’t worry. Our “kinetic military action” in Libya was supposed to last “days, not weeks,” but the administration is making no such promises this time—the fight against ISIS may take years

Still, “I have the authority to address the threat,” Obama maintained, with or without new authorization from Congress. Where does the president suppose that authority lies?

It can’t be found in Article II. That article’s commander-in-chief clause, as Hamilton explained in Federalist 69, just makes the president “first General and admiral” of America’s armed forces—and generals and admirals don’t get to decide whether and with whom we go to war. And, contra John Yoo, the legal architect of Bush’s Terror Presidency, unilateral warmaking authority can’t be conjured out of the penumbras and emanations …read more

Source: OP-EDS

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