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

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Tuesday, March 31, 2015

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?

Presented in partnership with The Richard Paul Richman Center at Columbia University and the National Constitution Center.

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  • Healy90px


    Gene Healy

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

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    Deborah Pearlstein

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

  • amar akhil


    Akhil Reed Amar

    Professor of Law, Yale University

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    Philip Bobbitt

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

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      John Donvan

      Author & Correspondent for ABC News

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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 and overcriminalization. He is the author of False Idol: Barack Obama and the Continuing Cult of the Presidency (2012) and The Cult of the Presidency: America’s Dangerous Devotion to Executive Power (2008) and editor of Go Directly to Jail: The Criminalization of Almost Everything (2004). Healy has appeared on PBS’s Newshour with Jim Lehrer and NPR’s Talk of the Nation, and his work has been published in Los Angeles Times, The New York Times, Chicago Tribune, Legal Times, and elsewhere. Healy holds a BA from Georgetown University and a JD from the University of Chicago Law School.

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For The Motion

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, and visiting appointments at UPenn Law School and Georgetown Law Center. Her research focuses on national security law and the separation of powers, and her work has appeared widely in law journals and the popular press. A leading national voice on law and counterterrorism, Pearlstein has repeatedly testified before Congress and in 2009 was appointed to the ABA's Advisory Committee on Law and National Security. From 2003-07, she served as the founding director of the Law and Security Program at Human Rights First. Before embarking on a career in law, Pearlstein served in the White House as a senior editor and speechwriter for President Clinton. A magna cum laude graduate of Harvard Law, she clerked for Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit and Justice John Paul Stevens of the U.S. Supreme Court.

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amar akhil

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 Yale Law School. He received his B.A, summa cum laude, in 1980 from Yale College, and his J.D. in 1984 from Yale Law School, where he served as an editor of The Yale Law Journal. After clerking for Judge Stephen Breyer, U.S. Court of Appeals, 1st Circuit, Amar joined the Yale faculty in 1985. Along with Dean Paul Brest and Professors Sanford Levinson, Jack Balkin, and Reva Siegel, Amar is the co-editor of a leading constitutional law casebook, Processes of Constitutional Decisionmaking. He is also the author of several books, including The Constitution and Criminal Procedure: First Principles (1997), The Bill of Rights: Creation and Reconstruction (1998), America’s Constitution: A Biography (2005), and most recently, America’s Unwritten Constitution: The Precedents and Principles We Live By (2012).

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Against The Motion

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 a distinguished senior lecturer at the University of Texas. One of the nation's leading constitutional theorists, his interests comprise constitutional law, international security, and the history of strategy. He has published nine books, including Terror and Consent (2008). He served as law clerk to the Hon. Henry J. Friendly (2 Cir.), associate counsel to the President, the counselor on international law at the U.S. Department of State, and senior director for strategic planning at the National Security Council among other posts. Bobbitt is a fellow of the American Academy of Arts and Sciences, a life member of the American Law Institute, and a member of the Council on Foreign Relations, the Pacific Council on International Policy, the International Institute for Strategic Studies, and serves on the Commission on the Continuity of Government.

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Declared Winner: Against The Motion

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Voting Breakdown:

47% voted the same way in BOTH pre- and post-debate votes (19% voted FOR twice, 22% voted AGAINST twice, 5% voted UNDECIDED twice). 53% changed their minds (7% voted FOR then changed to AGAINST, 2% voted FOR then changed to UNDECIDED, 7% voted AGAINST then changed to FOR, 2% voted AGAINST then changed to UNDECIDED, 13% voted UNDECIDED then changed to FOR, 22% voted UNDECIDED then changed to AGAINST) | Breakdown Graphic

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    • Comment Link David Wednesday, 10 June 2015 17:57 posted by David

      The Constitution clearly states that the Executive must ask Congress to wage war. Obama hasn't done that. Dropping hundreds of bombs and missiles on a sovereign country DOES count as war. It doesn't matter if "bodybags" exist or not. And it doesn't matter if Lincoln or previous wars were conducted without Congressional approval before.

      The only reason why our country has given Obama a pass, is because there is some strange cult around him, and the fact that he's a Democrat people assume must mean he's not a hawk, even when he's conducting multiple wars in multiple countries.

      In terms of the debate itself, I was pretty appalled by the snarky and condescending tone of Akhil Amar throughout the entire debate. I assumed a professor wouldn't directly compare his opponents to children in his opening statement. If he is so concerned about the preciseness of language, he should re-read the Constitution. Because he clearly is making irrational concessions and attributing too much power to the Executive.

    • Comment Link Steve Saturday, 02 May 2015 13:24 posted by Steve

      I was utterly baffled at the result of this debate. Started watching with an open mind and even thought the against side made far better arguments in their opening statements. But, as the debate continued, the for side completely dominated and left their opponents struggling for rebuttals. They eventually appeared to take the position that if Congress authorizes the POTUS to wage war anywhere, anytime, and for any reason, then it's Constitutional. When they got to that point, the for side won me over.

    • Comment Link Sean Tuesday, 14 April 2015 21:49 posted by Sean

      I do agree that the President had has the authorization to wage the wars which have been waged, however it is because Congress has allowed it. They allowed it by writing a poorly written authorization act, and by subsequently funding him for these abilities.

    • Comment Link Texas Dervish Friday, 10 April 2015 16:45 posted by Texas Dervish

      Michael, at the time the Constitution was adopted, there was no United Nations to which states had to petition for recognition of their sovereignty. Sovereignty consisted solely in physical control of a defined territory and people, which the Da°ish (aka ISIS/ISIL/IS) certainly have. They therefore meet the Constitution's definition of a sovereign state, and therefore the Constitutional requirement of a declaration of war by Congress applies. In reply to others, the blame lies equally with both Congress and the Executive for the lapse of this requirement: the Executive has continued to exceed its authority because Congress has failed to exercise its own.

    • Comment Link Paul E. Merrell, J.D. Wednesday, 08 April 2015 09:59 posted by Paul E. Merrell, J.D.

      I think the debate suffered from a lack of discussion of the U.N. Charter, which under the Constitution's Treaties Clause, is "the law of this land." The Charter forbids war except in self-defense or if authorized by the U.N. Security Council. That has particular significance for our wars in Iraq, Afghanistan, and Libya.

      I also take particular exception to the view expressed that our war on Libya was not a war because there were no U.S. casualties. A foreign nation's government was overthrown by force of arms and the civilian population was devastated. No new government has yet emerged. No scholar of international law would argue that it was not a war we waged on Libya.

    • Comment Link Mohamed Q Friday, 03 April 2015 01:41 posted by Mohamed Q

      This is the best debate i have seen on the war and constitution. Bravo IQ2

    • Comment Link BruceK Tuesday, 31 March 2015 19:43 posted by BruceK

      I think it is time we started to perceive that the driving force, the force that it is in the driver/s seat in our wonderful Western world, with our wonderful Western values, is militarism - necessarily so. This is reality. As soon as we do not give priority to our existence, strategically, militarily - we will fail and die ( split up or be taken over, just like Rome )

      This is a root tension in our country that has been solved by structuring our society based around money, which ensures that the military/civilian leadership and the corporate aristocracy that supports it and makes it up. This is de-emphasized the civil/public sector drastically during my lifetime, plunging the US into unknown territory.

      Everyone knows there is much wrong, but no one sees a way to discuss it or fix it, so democracy, even the republic has atrophied to such a point that we have a more feudal corporate aristocracy spread across nations and economic zones.

      As an aside, there is no global citizenry, there needs to be.

      The issue with the Presidential powers is that our elite needs to be able to see to its global needs, sometimes quickly. Anyone in the Presidency has been vetted and is not likely ( famous last words ) to sell the country out, and if he did he could be removed in times ... for goodness sake Clinton almost was removed from office for a BJ in the office.

      There are parts of our country that are strong, enduring, aggressive and expanding, and parts that are sickly and waning. This is not an issue of importance really, it is a no-brainer that the President will do what he needs to do, and if we hamper the President, him or her, we make our nation less effective.

      He will anyway, that is the way our country works, to think we can control that is one of the illusions we need to get rid of so we can concentrate on the things there is actual hope to control. Things like postal delivery, social security, people react when they are threatened, so they cannot be wiped out - so that is the basis or something. Other than that, since when did public input drive politics, particularly, say, if it happened to break down better the a majority of the lower 99% and the 1% with enough of the top end of the 99% siding with the 1%. We do not have a democracy OR a republic, and if we even want to have a people and a society we have to figure out what we do have and where we all stand in it.

      I know the President stands as commander in chief and treaty negotiator and executive officer, why play with undercutting that necessary office?

      Also, the subtext of all of this is that we are getting better at fighting wars. Less destruction, less violence, less cost. Will any of us alive see this probability cloud collapse into a Constitutional-type of government again laying our strict powers? Probably not, human brains do follow strict laws, we use intuition, but that should work better if we had the same underlying understandings and premises.

    • Comment Link Tess Stanton Tuesday, 31 March 2015 16:23 posted by Tess Stanton

      The debate brief on this topic was incredibly well compiled, great prep for this debate, thank you IQ2. I am undecided right now, but I thought our "Commander In Chief" was already entrusted with the power to declare war (as the commander)?

    • Comment Link Jon Bell Wednesday, 25 March 2015 22:19 posted by Jon Bell

      The U.S. Congress doesn't 'declare war'. And, hasn't for many, many years.
      What Congress does is issue AMUF's.
      Similar to 50 USC 1541, et seq.
      Moreover, the U.S. Congress has failed to hold any number of Presidents in line with Constitutional requirements.
      As such, the U.S. Congress has created an institution where no 'war declarations' are declared and the President has great authority to embark of all sorts of military adventures.
      If any branch of the federal government is acting unconstitutionally, it is the U.S. Congress.

    • Comment Link jdgalt Monday, 23 March 2015 17:29 posted by jdgalt

      If he can wage war whenever he likes, there is no point in even having a constitution. That ability has the effect of making him king.

    • Comment Link Bruce K. Monday, 23 March 2015 15:34 posted by Bruce K.

      The only reason we are asking this question is that the Republicans criticize everything Obama does regardless of magnitude or precedent.

      What we really need is to come to a decision how our country is going to run, and what the priorities are. In the long run the US has to come to plan about how to deal with radical Islam which potentially has 25% of the world's countries supporting it ( 50 Islamic countries out of 200 total ), as well as how to still counter Russian and Chinese militarism.

      The idea that we can just shop our way to survival or seduce the world into loving democracy by exporting our movies and sugar-water is far-fetched. However we decide to do it, we must find a sustainable way to expand Western civilization to the world, not just become the world's corporate headquarters.

    • Comment Link Michael Deal Monday, 23 March 2015 15:17 posted by Michael Deal

      The President does not require Congressional authorization to use military or naval force against ISIS because it is not a sovereign state and under customary international law cannot be considered a sovereign state. At the time of adoption of the Constitution, war was well understood to mean hostilities conducted against sovereign states. The use of force against non-state actors who violated international law was understood not to require Congressional authorization: The US Navy was understood to be authorized to use force to capture or kill non-state pirates and pirate ships engaged in attacks on commercial shipping or land targets without first obtaining Congressional authorization.

    • Comment Link triclops Monday, 23 March 2015 15:14 posted by triclops

      Those laws are for restraining the bad guys, ie. Republicans.
      President Obama is a Democrat, therefore one of the good guys, therefore we don't need to enforce those laws with him.

    • Comment Link ELAINE REISS Thursday, 19 March 2015 09:55 posted by ELAINE REISS


    • Comment Link Mark Willett Saturday, 14 March 2015 23:23 posted by Mark Willett

      my opinion is we must have trust in Optus and his advisors.therefor, yes, he has the power.

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