Skip to comments.Constitutional Scholars: Sustained Airstrikes in Iraq May Be Unconstitutional
Posted on 08/13/2014 5:53:30 AM PDT by Kaslin
The legality of Presidents Obamas sustained and targeted airstrike campaign in Iraq against ISIS forces is a matter of contention among some constitutional scholars.
What they all seem to agree upon, however, is that any targeted military operation, lasting no longer than a few days, does in fact pass constitutional muster (via The Hill):
I think any conflict of a couple days in nature could be justified, said Louis Fisher, a scholar at the Constitutional Law Project, but as President Obama said last weekend, this is not going to be for just a couple days or weeks, it could go on for a year or two.
Under the War Powers Act, Obama is required to report to Congress within 48 hours of the airstrikes commencing, Fisher said. At that point, he has 60 days to convince Congress to get on board, or else pull out the troops.
President Obama could extend that period by 30 days if the troops lives would be endangered by an immediate withdrawal.
By this legal reasoning, the president should already have asked for Congress permission to continue taking out ISIS military targets in Iraq. (He hasnt). And yet, the situation only becomes more convoluted when legal experts deliberate on the nature of the attacks. Part of the reason airstrikes were first deemed broadly lawful is because they were launched outside the city of Erbil, with the explicit purpose of protecting American citizens. Recent airstrikes, however, are being launched solely to protect the ethnic minority population in northern Iraq. And while there might not be a moral difference between protecting American lives and Iraqi lives -- the US stated objective is saving as many lives as possible -- this nuance under the law has all sorts of legal implications:
Obama has defended the airstrikes against ISIS near Mt. Sinjar as a humanitarian effort necessary to prevent genocide.
The airstrikes at Mt. Sinjar are a little different situation, because Obamas not defending Americans, [Professor Peter] Raven-Hansen said.
President Obama, arguably, has no constitutional authority to use American forces in combat to defend foreigners, he added.
Of course, thats only one experts opinion, and not all constitutional scholars agree on this point:
Robert F. Turner, a national security professor at the University of Virginia, though, defended Obamas actions in Iraq.
Turner said that Obama can continue ordering airstrikes against ISIS, because they are not a foreign state, just a terrorist group.
What hes doing, its not an act of war, Turner said. Hes essentially coming to the defense of Iraq. Nobody recognizes ISIS as a state. Theyre not set up as a government, theyre just a band of terrorists.
Whatever the case may be, the president has pursued targeted airstrike campaigns in the past without Congress' approval, and against the wishes of his top legal advisors. If he does this again, however, it's safe to say cries of executive overreach will only grow louder, even if his actions are warranted and well-intentioned.
Here's a hint to those would-be eggheads:
ANYTHING a foreign born usurper does is UNCONSTITUTIONAL!
Precedent trumps the supreme law. Just ask Scotus.
Thanks for posting this.
I mentioned this a few days ago.
Yes, the situation in Iraq is serious.
But the United States military does NOT belong to Obama.
He did this in Libya, and now in Iraq. He is not being challenged.
And he won't be. He has purged the upper echelons of anyone that would challenge him. Next test: Kill Americans.
And it is doubtful that he ever will. Pigmentation immunity goes a long way in PC America.
He already violated the War Powers act before this, and nothing happened. So, why should he care when he knows there are no consequences?
Former Speaker of the House Nancy Pelosi said that or words to that effect during questioning about the Constitutionality of OBAMACare before it was passed. That sums up the Democrat Party and Obama's disdain for our Constitution.
The real problem here is the languorous pursuit of inconclusive conflicts that are never resolved by outright victory.
So? If there no consequences...So???
These professors always rediscover the Constitution when the nation is at war, then forgets it at home at every chance. I think the Congress should declare war against ISIS and Islamic extremism. The Islamists know we’re at war, what good does pretending we’re not do?
The idiots do believe anything.
All I can say in this case is that Obama did the right thing. And, Congress should approve!
You forget that Barry is a constitutional scholar and he knows what he is doing /sarc
Has anyone asked the ISIS constitutional law scholars what THEY think? Shouldn’t we be worried that ISIS might sue us for war crimes in the Hague? Have we heard from their lawyers?
Without the consent of the Senate it would be unconstitutional.
This is impossible because 0bama is a Constitutional Scholar and Lecturer.
That is part of why there is no real call for Impeachment.