Steve Vladeck Profile picture
Apr 14, 2018 14 tweets 5 min read Twitter logo Read on Twitter
1. At the risk of trying to bring some nuance to Twitter, what follows is a #thread on U.S. law vis-a-vis the war powers, and why the legality of the #SyriaStrikes as a matter of U.S. law (to say nothing of int'l law) is both far from certain and revealing of far deeper problems:
2. Let's start from first principles. For uses of military force to be lawful as a matter of U.S. domestic law, the authority to use such force must stem either from an Act of Congress or from the President's powers under Article II of the Constitution.
3. As the government has already implicitly conceded, no statute authorized these strikes.

Although both the Obama and Trump administrations have relied upon the 2001 Authorization for the Use of Military Force (#AUMF) to use force _in_ Syria, those strikes were against #ISIS.
4. There's serious debate (& ongoing litigation) over whether ISIS is covered by the AUMF; contra the pictured statutory text, ISIS had nothing at all to do with the 9/11 attacks.

But there's no argument whatsoever that the 2001 AUMF authorizes the use of force against _Assad_.
5. A lot of commentators have pointed instead to the War Powers Resolution of 1973, a framework statute Congress enacted during Vietnam in an attempt to rein in unilateral presidential warmaking.

But the WPR itself specifies that it can't be read that way—as authorizing force:
6. Instead, the most pro-Executive Branch reading of the WPR is that it creates a 60-day window in which unilateral uses of force are not _prohibited_ (at the end of the 60 days, the statute mandates withdrawal of the relevant troops absent intervening congressional action).
7. But that's not the same thing as authorization. So the question reduces to whether the President can rely on his unilateral authority under Article II of the U.S. Constitution.

There's general consensus that Article II authorizes the President to use force in "self defense."
8. Here's perhaps the most on-point discussion by #SCOTUS—in its important, but often overlooked, 1863 decision known as the "Prize Cases":…
9. Wherever the line is between offense and defense, it's hard to see how strikes like last night's are on the "defense" side, given lack of imminent threat to the U.S.

Instead, they're defended under a broader theory—that Article II "self defense" includes "national interests."
10. It should go without saying that protecting "national interests" is far broader than "self defense."

It should also go without saying that the Prize Cases reasoning—that the President shouldn't have to wait for Congress to defend the country—doesn't apply to such a claim.
11. The problem is that, so long as the uses of force are limited (thereby not running into the War Powers Resolution's time-based prohibition), there's no clear legal mechanism to push back against these kinds of Article II arguments.

Instead, the remedies here are political.
12. But Congress has been remarkably unwilling, in the 45 years since the War Powers Resolution was enacted, to actually push back against these kinds of limited, unilateral uses of force—whether through spending cutoffs or other efforts to cabin them by statute.
13. That's been true when both Democrats & Republicans have been in control of Congress, and when both Democrats & Republicans have been in the White House. The issue here is a lack of institutional will—which has produced a drift in the perception, if not reality, of war powers.
14. So if the Q. is whether the #SyriaStrikes were legal as a matter of US law, the answer is "almost certainly not."

If the Q. is whether there's precedent for them anyway, the answer is "sort of."

And if the Q. is how do we _fix_ this, the answer, alas, is "Congress."


• • •

Missing some Tweet in this thread? You can try to force a refresh

Keep Current with Steve Vladeck

Steve Vladeck Profile picture

Stay in touch and get notified when new unrolls are available from this author!

Read all threads

This Thread may be Removed Anytime!


Twitter may remove this content at anytime! Save it as PDF for later use!

Try unrolling a thread yourself!

how to unroll video
  1. Follow @ThreadReaderApp to mention us!

  2. From a Twitter thread mention us with a keyword "unroll"
@threadreaderapp unroll

Practice here first or read more on our help page!

More from @steve_vladeck

Jul 18, 2018
“Birthright citizenship was a mistake whose time has gone.”…

Except that, contrary to what this op-ed argues, #SCOTUS really did settle this issue in 1898:…
Here’s the key passage from United States v. Wong Kim Ark:
One can argue that #SCOTUS got it wrong, but it would take the Court overruling itself or a constitutional amendment to change that rule; doing it by Executive Order would be unconstitutional.
Read 4 tweets
Jul 16, 2018
Last night's 5th Cir. ruling in Whole Women's Health (…) is another example of the phenomenon I tweeted about last week—conservative judges subordinating settled law to their own policy preferences, however compelling they may be.

A quick #thread on why:
1. The underlying dispute in the case is over a third-party subpoena issued by the plaintiffs (abortion providers) to the Texas Conference of Catholic Bishops (TCCB) as part of their challenge to #SB8. TCCB sought to quash the subpoena, and ultimately lost in the district court.
2. TCCB then sought appellate review of the denial of its motion to quash. Without reaching the merits of its claims that the subpoena violates the First Amendment and the Religious Freedom Restoration Act, Judges Jones and Ho agreed, holding that the subpoena was overbroad...
Read 11 tweets
Jul 11, 2018
The claim that conservative judges, unlike progressives, “follow the law” and simply “call balls and strikes” is a preposterous, tired canard.

Among the many counterexamples, this #thread focuses on one (involving Judge Kavanaugh)—tort suits against private military contractors:
1. As the military has come to rely on private military contractors (PMCs) for increasing logistical and other support overseas, the contractors have, not surprisingly, been subject to increasing litigation for alleged (and, in many cases, proven) misconduct by their employees...
2. Some of these claims are from servicemembers—for example, those who claim they were seriously injured as a result of PMCs repeatedly burning hazardous materials in open-air "burn pits" in Iraq and Afghanistan:…
Read 12 tweets
Jun 29, 2018
Until 1866, the size of #SCOTUS was tied directly to the number of circuit courts of appeals—from 6 seats in 1789 to 10 seats in 1863.

Each Justice therefore not only supervised a circuit, but truly _represented_ it, guaranteeing at least one meaningful source of diversity...
When Congress took away seats in 1866 to punish President Johnson, it thereby set the precedent for treating the Court’s size as a political consideration—a big part of why it’s been stuck at 9 since Congress restored two of the three deleted seats in 1869.
Untethering the Court’s size from strict geographic considerations not only politicized it, but it also removed one of the only formal incentives for any kind of diversity—such that any vector of diversity today is solely a result of political calculations and/or pressures.
Read 4 tweets
May 24, 2018
1. Following up on last week's @WSJ op-ed, Prof. Steve Calabresi has now posted to @SSRN a nine-page "Opinion on the Constitutionality of Robert Mueller's Appointment":…

His bottom line: It's unconstitutional.

This #thread explains why he's just wrong:
2. The key to understanding Calabresi's argument is to understand that it is actually two _different_ arguments that need to be addressed separately:

(i) that Mueller's _appointment_ violates the Appointments Clause; and
ii) that Mueller's _actions_ violate the Clause.
3. The first of these arguments is a claim that, based on the terms of the office, the Special Counsel is a "principal" officer under the Appointments Clause, and must therefore be nominated by the President, confirmed by the Senate, and removable at will by the President.
Read 14 tweets
Oct 13, 2017
1. Later today, #SCOTUS will consider whether to review another major #GTMO mil. comm'n appeal (Al-Nashiri). Quick thread on why it matters:
2. Al-Nashiri is charged with, among other things, responsibility for 10/2000 bombing of USS Cole. But Cole bombing pre-dated 9/11...
3. Congress only allowed #GTMO mil. comm'ns to try offenses committed during "hostilities," i.e., "any conflict subject to the laws of war."
Read 11 tweets

Did Thread Reader help you today?

Support us! We are indie developers!

This site is made by just two indie developers on a laptop doing marketing, support and development! Read more about the story.

Become a Premium Member ($3/month or $30/year) and get exclusive features!

Become Premium

Don't want to be a Premium member but still want to support us?

Make a small donation by buying us coffee ($5) or help with server cost ($10)

Donate via Paypal

Or Donate anonymously using crypto!


0xfe58350B80634f60Fa6Dc149a72b4DFbc17D341E copy


3ATGMxNzCUFzxpMCHL5sWSt4DVtS8UqXpi copy

Thank you for your support!

Follow Us on Twitter!