Is Obama's War-Powers Shift Hypocrisy, Or Inevitable For A President?

Transcript

SCOTT SIMON, HOST:

This is WEEKEND EDITION from NPR News. I'm Scott Simon. This week, a Nobel Peace Prize winner went before the United Nations to call for a sustained military campaign against what he called a network of death. The group that calls itself the Islamic State, also known as ISIS and ISIL. The president said...

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PRESIDENT BARACK OBAMA: There can be no reasoning, no negotiation with this brand of evil. The only language understood by killers like this is the language of force.

SIMON: The president has launched an air war against the group in Iraq and Syria without approval from Congress or a vote from the United Nations Security Council. As President Obama, in the sixth year of his presidency, made foreign-policy decisions that resemble many of those made by the previous administration, which he so roundly criticized, and what may his steps say about presidential leadership.

Stephen Carter joins us now. He's a professor of law at Yale, where he teaches among other classes, law and the ethics of war. He's also a best-selling novelist and a columnist for Bloomberg View. Professor Carter joins us from Yale. Thanks so much for being with us.

STEPHEN CARTER: It's my pleasure. Thank you, Scott.

SIMON: Let me talk to you as a lawyer first. Is Mr. Obama as president using a legal premise for the campaign against the Islamic State that he once questioned as a candidate?

CARTER: He certainly is. The White House is arguing that the president has the power under the resolution that was adopted by Congress in 2001 to enable the Bush administration to go after al-Qaida. The White House is arguing that ISIS is, in effect, an offshoot of al-Qaida since it was founded by former al-Qaida members and therefore, this is permitted under the resolution. This is a resolution that Obama himself, in the past, has more than once said ought to be repealed. But that, along with the president's own implied power as the Commander-in-Chief, serves as the basis of the Obama administration's argument for his ability to bomb ISIS in Syria and Iraq without congressional permission.

SIMON: And that's the argument that goes that the president of the United States has sworn to protect the United States. And even if Congress is slow to react, he or she can't be slow.

CARTER: Well, there are two different arguments, actually. One of the arguments is yes, that the president has an inherent ability to protect the nation's security and lots of presidents have relied on that all through the decades. There's nothing new about that. No one ever imagined that if you attack the United States, that some other president had to wait for congressional permission to strike back. And so, for example, if you think about the Civil War, Abraham Lincoln fought the first part of that war without any congressional resolution, in part because Congress wasn't even in session.

But then there's another part of the war power - the larger war power. Think of the war in Korea, for example. The war in Korea was never declared or authorized by Congress but was prosecuted with enormous numbers of American forces at an enormous loss of life. And there, Presidents Truman and Eisenhower relied on what they believed was their inherent constitutional authority, and an authority that they believed to become all the more important in the post-World War II world. It's not new, but it is something we should really be discussing. We should really wonder whether we really want to be a country where the president has this broad unilateral ability.

SIMON: What does this say about the power of the presidency? Does someone come into office with a certain view of the world, as Senator Obama did, and then took the oath of office, then start getting CIA briefings and see a different, more sinister world?

CARTER: Once the president comes into office, all those different prerogatives that candidates criticize and other politicians criticize, become more attractive, especially as the president begins to see the range of threats around the world. The president has the tools at hand, and the temptation to use them is very great. And let's be frank, all of us know there are times when we would want the president to use these powers unilaterally. The question isn't so much whether presidents are going to do that, the question we should be debating is when we want them to do it.

SIMON: Do you care to make a characterization of Congress for not allowing a vote to come about on this?

CARTER: You know, a long time ago, Felix Frankfurter of the Supreme Court wrote an opinion in which he said that the true powers of the president are not defined by the Constitution, they're defined by what Congress lets the president do. He said that day-to-day and month-to-month and year-to-year, we would come to understand what the true working balance of Congress and the president is by what the president gets away with. And over time, Congress has become accustomed to letting the president set the national security agenda. Congress become accustomed to the sense that it has to, in the end, fund whatever the president ends up deciding to do. That is not the way the framers thought things were going to operate. The framers thought that the funding power over the military was an important check on presidential authority. But in practice, it hasn't worked out that way.

SIMON: And I have to ask this this week, if the previous administration had done this, would political and public reaction be different?

CARTER: You know, I remember the 300,000 people who were rallying to fight climate change in New York last week. I think they probably would've had twice that many people rallying on the mall against the war. And I'm not suggesting that the rightness or wrongness of the war really does turn on who's in office, but sometimes a lot of activists behave, I think, as though it does.

And I also want to make clear that what's going on is a war. We are bombing inside the borders of a sovereign country. There is no question that the United States is at war with ISIS and arguably with the government of Syria. This is a war. It's not been declared or authorized or funded, but it's what we're fighting anyway.

SIMON: Speaking with us from Yale, Professor Stephen Carter. His most recent book is "Back Channel." Stephen, thanks very much.

CARTER: It's been my pleasure Scott. Thanks so much. Transcript provided by NPR, Copyright NPR.