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Constitutional War Initiation and the Obama Presidency

Published online by Cambridge University Press:  29 March 2017

Michael D. Ramsey
Michael D. Ramsey*
Affiliation:
University of San Diego School of Law
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Extract

In 2007, presidential candidate Barack Obama argued that the U.S. president did not have independent constitutional authority to use military force except in response to an actual or imminent attack on the United States. Since 2008, President Obama has directed the use of U.S. military force in at least seven countries (Iraq, Syria, Libya, Yemen, Afghanistan, Pakistan, and Somalia). Critics find inconsistency in these positions, contending that the Obama presidency will be remembered for expansion of the presidency's war powers. But when the administration's record is closely examined, these claims seem overstated. At least with regard to war initiation, the Obama presidency need not be regarded as materially enhancing the president's constitutional powers.

This assessment begins by establishing two baselines. First, most war powers scholars agree that under the Constitution's original meaning, Congress’ power to “declare War” required the president to seek congressional approval prior to initiating war. This constitutional command had substantial grey areas, including responses to threats and attacks, relations with non-state actors, and low-level hostilities. Nonetheless, the basic proposition stated by candidate Obama appears well founded both in the Constitution's text itself and in early postratification practice. Second, in the modern (post-Vietnam War) era, most scholars agree that the practice has changed somewhat, with presidents asserting an expanded independent authority over uses of military force. This essay agrees with that description, although it contends that the change in actual practice is less dramatic than commentary sometimes claims.

Type
Agora: Reflections on President Obama's War Powers Legacy
Information
American Journal of International Law , Volume 110 , Issue 4 , October 2016 , pp. 701 - 717
Copyright
Copyright © American Society of International Law 2016

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References

1 See Charlie Savage, Barack Obama's Q&A, Boston Globe (Dec. 7, 2007), at http://archive.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/.

2 U.S. Const., Art. I, sec. 8.

3 E.g., Jack Goldsmith & Matthew Waxman, Obama, Not Bush, Is the Master of Unilateral War, New Republic (Oct. 14, 2014), at https://newrepublic.com/article/119827/obamas-war-powers-legacy-hemust-seek-congressional-authorization; Jack Goldsmith, Obama's Breathtaking Expansion of a President's Power To Make War, Time (Sept. 11, 2014), at http://time.com/3326689/obama-isis-war-powers-bush/.

4 U.S. Const., Art. II, sec. 2; U.S. Const., Art. I, sec. 8.

5 See Ramsey, Michael D., Textualism and War Powers, 69 U. Chi. L. Rev. 1545, 1544 n.1 (2002)CrossRefGoogle Scholar (citing sources); Michael D. Ramsey, the Constitution’s Text in Foreign Affairs 218–38 (2007); Ackerman, Bruce & Hathaway, Oona, Limited War and the Constitution: Iraq and the Crisis of Presidential Legality, 109 Mich. L. Rev. 447 (2011)Google Scholar; Paulsen, Michael Stokes, The War Power, 33 Harv. J.L. & Pub. Pol’y 113 (2010)Google Scholar; Prakash, Saikrishna, Unleashing the Dogs of War: What the Constitution Means by “Declare War,” 93 Cornell L. Rev. 45 (2007)Google Scholar. But see Ramsey, supra, at 1544 n.2 (noting minority of scholars taking the opposing view). As to Congress’ ability to limit the president's conduct of hostilities, see Little v. Barreme, 6 U.S. 170 (1804).

6 See Ramsey, supra note 5, at 235–37 (2007); Louis Fisher, Presidential War Power 17–39 (2013); Stephen Griffin, Long Wars and the Constitution 23–26 (2013).

7 See Prakash, supra note 5, at 45.

8 Id.

9 See RAMSEY, supra note 5, at 245.

10 See id. at 244–45.

11 See Michael D. Ramsey, The President's Power to Respond to Attacks, 93 Cornell L. Rev. 169 (2007).

12 See Prakash, supra note 5.

13 Ramsey, supra note 5, at 245–50.

14 Michael D. Ramsey, Presidential Declarations of War, 37 U.C. Davis L. Rev. 321 (2003); Ramsey, supra note 5, at 250–52.

15 For an argument that the Constitution requires Congress to formally declare war, see J. Gregory Sidak, To Declare War, 431 Duke L.J. 27 (1991).

16 See, e.g., Griffin, supra note 6, at 1–10; Fisher, supra note 6, at xi.

17 In describing modern practice, I deliberately chose the post-Vietnam era to provide the baseline. Some defenses of independent presidential warmaking go back further, invoking pre-Vietnam episodes that arguably show enhanced presidential power. (The most notable such episode is President Truman's initiation of U.S. involvement in hostilities in Korea in 1950.) However, it seems clear that at the end of the Vietnam era there was no consensus of expansive presidential war power. Even though the Vietnam War had, for the most part, been authorized by an open-ended congressional resolution, the war was still widely denounced as unconstitutional. Moreover, President Nixon's bombing of Cambodia—a relatively minor use of force—was widely seen as unconstitutional even by those who thought the larger war in Vietnam was not. See John Hart Ely, War and Responsibility (1993) (discussing the Vietnam War's constitutionality). The 1973 War Powers Resolution, statutorily limiting the president's introduction of U.S. troops into hostilities, was Congress’ rebuke (passed over President Nixon's veto) to an executive that Congress perceived as having exceeded its powers. Thus, claims that a modern consensus has emerged regarding presidential warmaking should be rooted in post-Vietnam acceptance.

18 See Fisher, supra note 6, at 154–235.

19 For example, many of these instances—possibly as many as ten of the sixteen—might be justified as responses to threats to, or attacks on, U.S. citizens abroad. It is not clear whether and under what circumstances the Constitution's original meaning authorized the president to use force to protect U.S. citizens abroad. Of these episodes, Grenada and Panama seem the most dubious constitutionally, as both resulted in the overthrow of a sovereign government, and in both cases the attacks or threats seemed either speculative or isolated.

20 See Fisher, supra note 6, at 197 (finding the Kosovo episode—along with the earlier conflict in Korea—to be the only “clearly unconstitutional wars” of the modern era). One might also argue that the Kosovo intervention was authorized retroactively by a congressional appropriation of funds to continue military operations.

21 See Michael D. Ramsey, Presidential Originalism?, 88 B. U. L. Rev. 353 (2008).

22 See generally Griffin, supra note 6, at 153–235.

23 See Fisher, supra note 6, at 169–74.

24 Id. at 175–201.

25 Id. at 165–69.

26 Id. at 161–63.

27 See Robert Turner, Repealing the War Powers Resolution (1991).

28 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (providing that “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons”). See Bradley, Curtis A. & Goldsmith, Jack L., Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047 (2005)Google Scholar.

29 See Council on Foreign Relations, Backgrounder: Al-Qaeda in the Arabian Peninsula (June 19, 2015), at http://www.cfr.org/yemen/al-qaeda-arabian-peninsula-aqap/p9369 (describing drone campaign directed by President Obama in Yemen). President Bush had authorized a very small number of drone strikes (possibly only one) in Yemen during his presidency although he had sent advisers to assist the Yemeni government in combatting al-Qaeda-backed groups in Yemen. Id. In October 2016, the president authorized the U.S. Navy to fire on positions held by the Houthi rebel group in Yemen. See Phil Stewart, U.S. Military Strikes Yemen after Missile Attacks on U.S. Navy Ship, Reuters (Oct. 13, 2016), at http://www.reuters.com/article/usyemen-security-missiles-idUSKCN12C294. The Houthi group had no connection to Al Qaeda or the Islamic State and therefore there was no plausible claim of congressional approval. However, U.S. strikes came in response to missiles fired at U.S. navy ships, apparently by the Houthi rebels. As a result, the U.S. strikes were presumably made under the president's independent power as a response to an attack on U.S. forces.

30 See Jonathan Masters & Mohammed Aly Sergie, Backgrounder: Al-Shabab (Mar. 13, 2015), at http://www.cfr.org/somalia/al-shabab/p18650 (describing Al Shabab as “an al-Qaeda-linked militant group”).

31 AQAP, for example, did not form until 2009, although it formed from a union of prior Al Qaeda affiliates in Yemen and Saudi Arabia. See Backgrounder, supra note 29.

32 See Bradley, Curtis A. & Goldsmith, Jack L., Obama's AUMF Legacy, 110 AJIL 628, 636–38 (2016)CrossRefGoogle Scholar; Stephen W. Preston, General Counsel, Department of Defense, Prepared Statement Before the U.S. Senate Committee on Foreign Relations: The Framework Under U.S. Law for Current Military Operations (May 21, 2014) (citing 2001 AUMF as authority for operations against AQAP and Al Shabab, in addition to operations in Afghanistan), at http://www.foreign.senate.gov/imo/media/doc/Preston_Testimony.pdf. Notably, as to Somalia, Preston emphasized that the United States was targeting only certain individuals with Al Qaeda ties, not the Al Shabab group itself. This somewhat artificial distinction possibly rested on the concern that Al Shabab was not really an Al Qaeda affiliate sufficient to invoke the 2001 AUMF.

In March 2016, the United States launched a broader attack against Al Shabab, killing some 150 fighters at a training camp. The administration explained its authority as arising from the 2001 AUMF, which (it said) both allows U.S. troops to deploy to Somalia to counter Al Qaeda forces there and to defend themselves against imminent attacks. The administration contended that the Al Shabab fighters attacked at the base had been preparing an attack on U.S. forces. See Charlie Savage, Is the U.S. Now at War with the Shabab? Not Exactly, N.Y. Times, Mar. 15, 2016, at A11(L); Erica Gaston, Do the Strikes on al Shabaab Stretch the AUMF or the Unit Self-Defense Doctrine?, Lawfare (Mar. 18, 2016), at https://www.lawfareblog.com/do-strikes-al-shabaab-stretch-aumf-or-unit-self-defense-doctrine.

33 See Bruce Ackerman, Expanding Bombings in Yemen Takes War Too Far, Wash. Post (Apr. 20, 2012), at https://www.washingtonpost.com/opinions/expanding-bombings-in-yemen-takes-war-too-far/2012/04/20/gIQAq7hUWT_story.html?utm_term_.5aa7a8897842; compare Robert Chesney, AQAP Is Not Beyond the AUMF: A Response to Ackerman, Lawfare (Apr. 24, 2012) (describing AQAP as “the direct and immediate manifestation of core al-Qaeda's long-standing operational presence in Yemen” and therefore covered by the 2001 AUMF), at https://www.lawfareblog.com/aqap-not-beyond-aumf-response-ackerman.

34 See Chesney, supra note 33 (commenting that the president would have been on strong ground invoking independent power to strike AQAP and arguing that “[i]n circumstances where the ‘terrorist threat’ in question is an organization that has already attempted to kill Americans on multiple occasions and is plainly intent on doing so again when the opportunity presents itself, the president just as plainly has both the authority and the obligation under Article II to act to defend the country, with or without an explicit legislative authorization to do so”).

35 See id.

36 See Charlie Savage, Power Wars: Inside Obama's Post-9/11 Presidency 685– 87 (2016) (calling the Islamic State “a rebranded descendant of al-Qaeda in Iraq”); Liz Sty, Al-Qaeda Disavows Any Ties with Radical Islamist ISIS Group in Syria, Iraq, Wash. Post (Feb. 3, 2014), at https://www.washingtonpost.com/world/middle_east/al-qaeda-disavows-any-ties-with-radical-islamist-isis-group-in-syria-iraq/2014/02/03/2c9afc3a-8cef-11e3-98ab-fe5228217bd1_story.html.

37 E.g., White House Press Release, Letter from the President—War Powers Resolution Regarding Iraq (Aug. 14, 2014), at https://www.whitehouse.gov/the-press-office/2014/08/17/letter-president-war-powers-resolution-regarding-iraq.

38 Eli Lake, Obama's New War on ISIS May Be Illegal, Daily Beast (Sept. 10, 2014), at http://www.thedailybeast.com/articles/2014/09/10/is-obama-s-new-war-against-isis-illegal.html (“Obama's top advisers are now saying that the 2001 congressional resolution that created the war against al Qaeda, known as an Authorization for Use of Military Force (AUMF), provides the president with the legal basis for his new war.”); Spencer Ackerman, White House Says Expired War Powers Timetable Irrelevant to ISIS Campaign, Guardian (Oct. 16, 2014), at https://www.theguardian.com/us-news/2014/oct/15/white-house-war-powers-resolution-iraq (“‘We believe he can rely on the 2001 AUMF for the airstrikes he is authorizing against ISIL,’ a senior administration official told reporters Wednesday in a briefing on the president's war speech.”); see also Savage, supra note 36, at 687–88 (discussing administration's internal legal debates).

This shift may have been undertaken to avoid the time limits of the War Powers Resolution. See Jack Goldsmith, The Administration Has Violated the War Powers Resolution Unless It Is Right About the Applicability of the AUMFs to the Islamic State, Lawfare (Oct. 8, 2014), at https://www.lawfareblog.com/administration-has-violated-war-powers-resolution-unless-it-right-about-applicability-aumfs-islamic (“[T]he President originally (in August and September) relied on Article II alone as a basis for the strikes against [the Islamic State]. He then switched about a month ago to say that the strikes are also based on the 2001 and 2002 AUMFs. The switch in legal rationales has enormous significance for—and in my judgment was likely motivated by—compliance with the WPR.”). See also Ben Wittes, Not Asking the Girl to Dance, Lawfare (Sept. 10, 2014), at https://www.lawfareblog.com/not-asking-girl-dance (“Apparently, the administration's legal theory for why it has authority to dance alone here is not inherent Article II authority. It is the 2001 AUMF.”).

39 Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498 (2002). See Charlie Savage, Obama Sees Iraq Resolution as a Legal Basis for Airstrikes, Official Says, N.Y. Times, Sept. 13, 2014, at A8; Savage, supra note 36, at 687–88.

40 White House Press Release, Letter from the President—Authorization for the Use of United States Armed Forces in Connection with the Islamic State of Iraq and the Levant (Feb. 11, 2015), at https://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection (letter to the U.S. Congress).

41 Ashley Parker, Impasse with Congress Imperils Authorization to Combat ISIS, N.Y. Times, March 11, 2015, at A1; see Bradley & Goldsmith, supra note 32, at 635–36.

42 See Ryan Goodman, The President Has No Authorization to Use Force Against ISIS in Iraq, Just Security (June 19, 2014), at https://www.justsecurity.org/11873/president-congressional-authorization-force-isis-iraq/; Ryan Goodman, Obama Can't Declare a New Iraq War Without Approval. Even Bush Knew That, Guardian (June 19, 2014), at https://www.theguardian.com/commentisfree/2014/jun/19/obama-iraq-war-approval-air-strikes; Goldsmith, supra note 3 (calling it “presidential unilateralism masquerading as implausible statutory interpretation”).

43 Jennifer Daskal, Ryan Goodman & Steve Vladeck, The Premature Discussion of ISIS and the 2001/2002 AUMFs, Just Security (June 17, 2014), at https://www.justsecurity.org/11692/isis-aumfs/ (arguing that 2002 Iraq AUMF does not authorize hostilities against the Islamic State, as the purpose and design of the enactment concerned the Saddam Hussein regime).

Further complicating the matter, in August 2016 the United States initiated air strikes against the Islamic State in Libya. Helene Cooper, U.S. Conducts Airstrikes Against ISIS in Libya, N.Y. Times, Aug. 1, 2016, at A4. Even if the 2002 AUMF covered operations against the Islamic State in Iraq and (more tenuously) Syria, it would seem difficult to say that it authorized actions against the Islamic State in Libya, as the Islamic State's Libya forces had no apparent operational connection to the Islamic State in Iraq apart from being nominally part of the same organization. Similar concerns would apply to the extent the United States has undertaken actions against the Islamic State's forces in Afghanistan, although these also might be justified as defensive measures to protect U.S. troops already deployed in that country to fight the Taliban. See supra note 32 (discussing similar justifications for attacks in Somalia). Thus by 2016 the administration appeared to have settled on the 2001 AUMF. See Bradley & Goldsmith, supra note 32, at 628 (noting that “the [2001] AUMF remains the principal legal foundation under U.S. domestic law for the president to use force against and detain members of terrorist organizations”).

44 E.g., Jack Goldsmith, The 2002 Iraq AUMF Almost Certainly Authorizes the President to Use Force Today in Iraq (and Might Authorize the Use of Force in Syria), Lawfare (June 13, 2014) at http://www.lawfareblog.com/2014/06/the-2002-iraq-aumf-almost-certainly-authorizes-the-president-to-use-force-today-iraq-and-might-authorize-use (arguing that the plain text of the 2002 Iraq AUMF may be reasonably construed to permit military action to deal with the threat posed by an Iraq destabilized by the Islamic State).

45 See Parker, supra note 41, quoting Senator Tim Kaine (D-Va) as saying that “a strong supermajority of both houses supports U.S. military action against [the Islamic State].” The parties in Congress apparently disagreed primarily on the extent to which a new AUMF should limit the president's authority as to the duration or scope of the operations. Id.; see also Bradley & Goldsmith, supra note 32, at 637 (noting that Congress has appropriated enormous sums for military operations against the Islamic State, which the administration has characterized as a ratification).

46 As Professors Bradley and Goldsmith observe, “the transformation of the [2001] AUMF … into a protean foundation for indefinite war against an assortment of terrorist organization in numerous countries is one of the most remarkable legal developments in American public law in the still-young twenty-first century.” Bradley & Goldsmith, supra note 32, at 628.

47 See supra part I.

48 As noted above, see supra note 38, commentators have plausibly argued that the administration's embrace of statutory authorization may have been prompted not by constitutional concerns but by the War Powers Resolution, which requires express congressional approval for conflicts lasting longer than sixty (or ninety) days. If true, that would still make the Islamic State episode a restraining rather than expanding precedent; an alternative course would have been for the president to ignore or creatively interpret the War Powers Resolution. That the president modified his arguments to accommodate the War Powers Resolution indicates that it retains some constraining force, despite widespread criticism of it.

49 Strikes began on March 19, 2011, involving the United States and a number of allied nations, mostly from the North Atlantic Treaty Organization (NATO). On March 31, NATO took over control of the air campaign, although U.S. forces remained significantly involved until Qaddafi's overthrow in October. See Koh, Harold Hongju, The War Powers and Humanitarian Intervention, 53 Hous. L. Rev. 971, 980–98 (2016)Google Scholar; Savage, supra note 36, at 635–49.

50 Memorandum from Principal Deputy Assistant Attorney General Caroline D. Krass, Office of Legal Counsel, to Attorney General Eric H. Holder (Apr. 1, 2011) (“Authority to Use Military Force in Libya”), available at http://www.justice.gov/sites/default/files/olc/opinions/2011/04/31/authority-military-use-in-libya.pdf.

51 E.g., Fisher, Louis, Military Operations in Libya: No War? No Hostilities?, 42 Pres. Studies Q. 176 (2012)CrossRefGoogle Scholar; Ramsey, Michael D., The Limits of Custom in Constitutional and International Law, 50 San Diego L. Rev. 867, 885–91 (2013)Google Scholar; Michael J. Glennon, The Cost of “Empty Words”:A Comment on the Justice Department's Libya Opinion, Harv. Nat’l Security J. (Apr. 14, 2011).

52 See supra part II.A.

53 E.g., 2 Samuel Johnson, a Dictionary of the English Language (Arno 1979) (1755) (definition of “war”). See Ramsey, supra note 5, at 1609–18 (giving further examples).

54 See Ramsey, supra note 51, at 885–91 (expanding this argument). The memorandum also invoked the threatened action in Haiti, which a prior OLC memorandum had found constitutional, but that cannot count as evidence of practice since it never actually occurred.

55 Further, the Libya memorandum strongly endorsed the Kosovo campaign; previously the executive branch had appeared less confident of its constitutionality. See Jack Goldsmith, The Obama Administration's Views on the Legality of Intervention in Syria Without Congressional or U.N. Security Council Support, Lawfare (June 21, 2016), at https://www.lawfareblog.com/obama-administrations-views-legality-intervention-syria-without-congressional-or-un-security-council.

56 See Charlie Savage & Mark Lander, White House Defends Continuing U.S. Role in Libya Operation, N.Y. Times, June 15, 2011, at A16 ; Koh, supra note 49, at 980–98 (defending the president's view of “hostilities”); id. at 990 (noting “limited, supporting nature of the U.S. mission” in Libya).

57 War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973) (codified at 50 U.S.C. §§1541–1548 (2012)).

58 See Dawn Johnsen, When Responsibilities Collide: Humanitarian Intervention, Shared War Powers, and the Rule of Law, 53 Hous. L. Rev. 1065, 1098–99 (2016); Savage, supra note 36, at 645–49; Fisher, supra note 51. Notably, however, the president chose to argue compliance with the War Powers Resolution rather than to claim it was unconstitutional, which would have been a greater expansion of presidential power. See Savage, supra note 36, at 645 (noting this option).

59 E.g., Fisher, supra note 51; Bruce Ackerman, Legal Acrobatics, Illegal War, N.Y. Times, June 21, 2011, at A27; Glennon, supra note 51; Michael D. Ramsey, The Constitution and Libya, Opinio Juris (Mar. 23, 2011), at http://opiniojuris.org/2011/03/23/the-constitution-and-libya/; John Samples, Why the Libyan War Is Unconstitutional (Mar. 22, 2011), at http://www.cato.org/publications/commentary/why-libyan-war-is-unconstitutional; Ilya Somin, The Growing Conflict over the Legality of the Libya Intervention, Volokh Conspiracy (June 16, 2011), at http://volokh.com/2011/06/16/the-growing-conflict-over-the-legality-of-the-libya-intervention/. But see Jack Goldsmith, War Power: The President's Campaign Against Libya Is Constitutional, Slate (Mar. 21, 2011), at http://www.slate.com/articles/news_and_politics/jurisprudence/2011/03/war_power.html; Akhil Reed Amar, Bomb Away, Mr. President: Legally and Constitutionally, Obama's Libya Policy Is on Firm Ground, Slate (June 29, 2011), at http://www.slate.com/articles/news_and_politics/jurisprudence/2011/06/bomb_away_mr_president.html; Koh, supra note 49, at 980–98; Jordan J. Paust, Constitutionality of U.S. Participation in the United Nations– Authorized War in Libya, 26 Emory Int’L L. Rev. 43 (2012).

60 See Charlie Savage, Attack Renews Debate over Congressional Consent, N.Y. Times, Mar. 21, 2011, at A14.

61 Stephen Dinan, Bipartisan Congress Rebuffs Obama on Libya Mission, Wash. Times (June 3, 2011), at http://www.washingtontimes.com/news/2011/jun/3/bipartisan-congress-rebuffs-obama-libya-mission (“In two votes—on competing resolutions that amounted to legislative lectures of Mr. Obama—Congress escalated the brewing constitutional clash over whether he ignored the founding document's grant of war powers by sending U.S. troops to aid in enforcing a no-fly zone and naval blockade of Libya.”); Savage, supra note 36, at 646–49.

62 Jennifer Steinhauer, House Spurns Obama on Libya, but Does Not Cut Funds, N.Y. Times, June 24, 2011, at A1 (calling vote “a symbolic blow to President Obama”).

63 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring) (“[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned … may be treated as a gloss on ‘executive Power’ vested in the President by § 1 of Art. II”); Bradley, Curtis A. & Morrison, Trevor W., Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 465–67 (2012)Google Scholar (“[I]f one's approach to historical practice focuses on claims of institutional acquiescence, mere recitations of operationally similar past uses of force should not suffice.”); Curtis A. Bradley, Doing Gloss, 84 Chi. L. Rev. (forthcoming 2016) (questioning proper methodology for identifying “gloss”), available at http://ssrn.com/abstract_2802728.

64 A further possible consideration is that in Libya, the United States had the support of a UN Security Council Resolution (a circumstance not likely often to be repeated). TheOLCmemorandum defending the Libya operation did not rely on the Resolution, but some commentators have suggested it may have been constitutionally or practically relevant. See Paust, supra note 59; Curtis A. Bradley & Jean Galbraith, Presidential War Powers as a Two-Level Dynamic: International Law, Domestic Law and Practice-Based Legal Change, Nyu L. Rev. (forthcoming 2016), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id_2691057.

65 The President's News Conference, 2012 DAILY COMP. PRES. DOC. 6 (Aug. 20, 2012).

66 See, e.g., Jack Goldsmith, Why Doesn't President Obama Seek Congressional Approval for Syria?, Lawfare (Aug. 28, 2013), at https://www.lawfareblog.com/why-doesnt-president-obama-seek-congressional-approval-syria (arguing that the “planned use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond whereit hasgonebefore”); id. (arguing that using force without congressional authorization “will set a novel constitutional precedent for presidential unilateralism that will far outlive his presidency”); David Cole, Obama, Syria and the Constitution, N.Y. Rev. Books (Aug. 29, 2013), at http://www.nybooks.com/daily/2013/08/29/obama-syria-constitution (discussing congressional views and commentary).

67 White House Press Release, Statement by the President on Syria (Aug. 31, 2013), at https://www.whitehouse.gov/the-press-office/2013/08/31/statement-president-syria (calling for Congress to approve action “designed to be limited in duration and scope,” although adding “I believe I have the authority to carry out this military action without specific congressional authorization”).

68 See Koh, supra note 49, at 999 (observing that had the president pressed the request, he “likely would have lost”).

69 The president's lawyers apparently concluded that attacking Syria was within the president's independent powers. See Charlie Savage, Obama Tests Limits of Power in Syrian Conflict, N.Y. Times, Sept. 8, 2013, at A1; Goldsmith, supra note 55. Charlie Savage, the prominent New York Times reporter, later described a still-secret internal memorandum, written prior to the actual use of chemical weapons, finding that the president had independent constitutional authority to launch attacks in response. Somewhat tentatively, he attributes the request to Congress as reflecting Obama's own constitutional assessment of war powers. See Savage, supra note 36, at 653; Charlie Savage, The Obama Legal Team and the Lawfulness of Attacking Assad, Lawfare (June 21, 2016), at https://www.lawfareblog.com/obama-legal-team-and-lawfulness-attacking-assad. However, the decision to seek congressional approval might have arisen from political considerations, the prospective intervention's dubious legality under international law (especially as compared to Libya), concerns about the War Powers Resolution, or a way to justify not taking action. See also Koh, supra note 49, at 1001 (discussing Syria and concluding that “prior congressional approval was probably not legally required for the limited strike that the President proposed”).

70 On the significance of the Security Council resolution in the assessment of domestic war powers, see Bradley & Galbraith, supra note 64.

71 Secretary of State Kerry described the contemplated action (perhaps inaccurately) as “unbelievably small.” Jonathan Karl, John Kerry Promises “Unbelievably Small” U.S. Strike Against Syria, ABC News (Sept. 9, 2013), at http://abcnews.go.com/blogs/politics/2013/09/john-kerry-promises-unbelievably-small-u-s-strike-against-syria.

72 See, e.g., David Cole, Clogging the War Machine, N.Y. Rev. Books (Sept. 19, 2013), at http://www.nybooks.com/daily/2013/09/19/syria-clogging-war-machine (concluding that “Obama's decision to go to Congress reaffirms that the people's representatives should have a say on the difficult issue of whether to use military force against another sovereign”).