Against all hope for change, President Barack Obama has been a war president and a vigorous one at that. This Article considers the legality of his uses of force in Libya and against ISIS. When the President waged war against Libya in 2011, he acted contrary to the Constitution and its allocation of the declare war power to Congress. In simple terms, the President unconstitutionally declared war against Libya. Moreover, the aerial bombardment of Libyan forces constituted hostilities under the War Powers Resolution. Given that Resolution’s time constraint on hostilities, the President’s failure to halt the war against Libya infringed that Resolution. With respect to ISIS, however, I believe that the President’s continuing war is legal. The 2001 Authorization for Use of Military Force sanctions the use of necessary and appropriate force against those organizations that conducted the 9/11 attacks. Because al Qaeda perpetrated the 9/11 attacks, when the predecessor of ISIS joined al Qaeda in 2004, the predecessor thereby made itself a lawful target under the 2001 Authorization. Though ISIS splintered from al Qaeda in 2014, it retains the stigma of its former association with al Qaeda and remains subject to uses of military force by the United States.
National security decisions pose a paradox: they are among the most consequential a government can make, but are generally the least transparent to...
During times of crisis, governments often consider policies that may promote safety, but that would require overstepping constitutionally protected...
For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help: it is strongly...
This essay considers the future of public-private collaboration in the wake of the Murthy v. Missouri litigation, which cast doubt on the...
This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The...
It has been a big moment for court reform. President Biden has proposed a slate of important if vaguely defined reforms, including a new ethics regime...
For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)
Neil Siegel has written a grand...
In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court acknowledged the difficulties in applying its constitutional originalism to the...
At the heart of national security decisions lies a paradox: these decisions are among the most consequential a government can make, but often the...
In an earlier article titled The Executive Power of Removal, we contended that Article II gives the President a constitutional power to remove...
The Supreme Court has twice held since 2020 that statutory restrictions on the President’s removal power violate Article II of the U.S. Constitution...
The Supreme Court has overruled Chevron v. Natural Resources Defense Council, finally interring a doctrine of statutory interpretation that it had...
Celebrating Charles Ogletree, Jr. comes naturally to so many people because he served not only as a tireless champion of equality and justice, but...
The use of autonomy to initiate force, which states may begin to view as necessary to protect against hypersonic attacks and other forms of ‘hyperwar...
After two years of debate in Congress and the broader world over forfeiting the frozen assets of the Russian Central Bank for the benefit of Ukraine...
In recent years, several popularly elected leaders have moved to consolidate their power by eroding checks and balances. Courts are commonly the...
Does the U.S. Constitution protect the affirmative right to vote? Those focusing on the Constitution’s text say no. Yet, the Supreme Court has treated...
In their article, The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel J. Chin and Paul Finkelman make a...