As Bruce Ackerman–who is no one’s idea of a right-wing legal theorist–points out, George W. Bush never came close to running the type of imperial presidency that his successor is running:
PRESIDENT OBAMA’s declaration of war against the terrorist group known as the Islamic State in Iraq and Syria marks a decisive break in the American constitutional tradition. Nothing attempted by his predecessor, George W. Bush, remotely compares in imperial hubris.
Mr. Bush gained explicit congressional consent for his invasions of Afghanistan and Iraq. In contrast, the Obama administration has not even published a legal opinion attempting to justify the president’s assertion of unilateral war-making authority. This is because no serious opinion can be written.
This became clear when White House officials briefed reporters before Mr. Obama’s speech to the nation on Wednesday evening. They said a war against ISIS was justified by Congress’s authorization of force against Al Qaeda after the Sept. 11, 2001, attacks, and that no new approval was needed.
But the 2001 authorization for the use of military force does not apply here. That resolution — scaled back from what Mr. Bush initially wanted — extended only to nations and organizations that “planned, authorized, committed or aided” the 9/11 attacks.
Mr. Obama is rightly proud of his success in killing Osama bin Laden in 2011 and dismantling the Qaeda network he built up. But it’s preposterous to suggest that a congressional vote 13 years ago can be used to legalize new bombings in Syria and additional (noncombat) forces in Iraq. In justifying earlier bombing campaigns in Yemen and Somalia, the administration’s lawyers claimed that the 2001 authorization covered terrorist groups that did not even exist back then. They said it sufficed to show that these groups were “affiliated” with Al Qaeda.
Even this was a big stretch, and it is not big enough to encompass the war on ISIS. Not only was ISIS created long after 2001, but Al Qaeda publicly disavowed it earlier this year. It is Al Qaeda’s competitor, not its affiliate.
Mr. Obama may rightly be frustrated by gridlock in Washington, but his assault on the rule of law is a devastating setback for our constitutional order. His refusal even to ask the Justice Department to provide a formal legal pretext for the war on ISIS is astonishing.
I cannot agree more, and of course, it should come as no surprise that the anti-war crowd–which protested George W. Bush’s policies at the drop of a hat and which made him out to be some kind of dictator–has been largely silent in the face of the Obama administration’s consistent efforts to undermine constitutional principles.