Constitutional War Initiation and the Obama Presidency

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.