Cool eyes hallucinating at the constitutional lawprofs of war.

"Obama attacked from the left" is a tag of mine, and I'm applying it to this NYT op-ed by Yale conlawprof Bruce Ackerman: "Obama’s Betrayal of the Constitution." Dateline — ominously! — Berlin. Excerpt:

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....

That's a bold beginning, but it's actually weakened by seeming to open up a discussion of the need for a formal declaration of war, something that the United States hasn't had since WWII. But Ackerman proceeds to discuss the "authorization for the use of military force," which Congress gave to President Bush 3 days after the 9/11 attacks. That vote was practically unanimous.

Let me take a little detour of my own here. The "no" vote in 2001 was from Barbara Lee, who was called a "traitor" and a "communist" at the time, but whose words are strikingly prescient today.
She said we should be "careful not to embark on an open-ended war with neither an exit strategy nor a focused target." She called the AUMF "a blank check to the president to attack anyone involved in the September 11 events — anywhere, in any country, without regard to our nation's long-term foreign policy, economic and national security interests, and without time limit."

Ironically, her warning didn't go far enough, since Obama is going after ISIS, which wasn't "involved" in the 9/11 attacks. Obama did connect ISIS to al Qaeda in his speech — "[ISIL] was formerly al Qaeda’s affiliate in Iraq... ISIL is a terrorist organization, pure and simple" — and he did vaguely refer to the authorization to go after al Qaeda in the second paragraph of the speech, which expressly cites his power as Commander in Chief to protect the United States and then says:

Over the last several years, we have consistently taken the fight to terrorists who threaten our country.  We took out Osama bin Laden and much of al Qaeda’s leadership in Afghanistan and Pakistan.  We’ve targeted al Qaeda’s affiliate in Yemen, and recently eliminated the top commander of its affiliate in Somalia.

He then connects ISIS — he calls it ISIL — to al Qaeda.

Now, let's get back to Professor Ackerman, who contends that the 2001 AUMF (which isn't the same thing as the authorization for the Iraq war) doesn't apply. Of course, as noted above, Obama didn't say it did. He only gestured at it, expecting some of us to accept that it's close enough, especially when augmented by his power as Commander in Chief. Ackerman says "it's preposterous" to think the old 2001 AUMF can "legalize" the new military action, but that's assuming that without express congressional approval, it's not legal. I think it's obvious that Obama wouldn't concede the illegality or the need for congressional authorization. The legal provision he expressly cites is Article II, Section 2 of the Constitution: "The President shall be Commander in Chief." Congress hasn't purported to authorize this specific action, but it hasn't disapproved it, and the 2001 authorization shows its general approval of this kind of action, an approval that has continued through many years as the war on terror popped up in various locations, so the strong version of presidential power envisions the President as having the authority to do what he deems necessary to protect the American people.

Now, the War Powers Resolution was designed to shore up the power of Congress. It was passed over presidential veto in 1973. It uses the word "hostilities" rather than "war," and demands that the President notify Congress and purports to require withdrawal if Congress doesn't authorize the action within 60 days. That is, Congress, recognizing its own terrible tendency toward passivity, tried to set things up so that its failure to act would force the President to stop doing something he had deemed necessary. Ackerman calculates the deadline as October 7th, but who's counting? Obama didn't mention the War Powers Resolution in his speech, and if a deadline falls in October and Congress doesn't hear it, does it make a sound?

Ackerman notes that Obama got away with ignoring the deadline in Libya:

[H]is lawyers argued that America’s supporting role in the NATO campaign was not substantial enough to quality as “hostilities” under the [War Powers R]esolution. This claim provoked howls in Congress and the legal community, but the death of the Libyan dictator, Col. Muammar el-Qaddafi, took the steam out of the debate before it could be resolved.

Howls, eh? I know nothing of the law of howl, though I did see the best minds of my generation destroyed by madness, starving hysterical naked. Obama himself was a best mind of his generation of constitutional lawprofs, which wasn't the same generation as Ackerman's. I'm a constitutional lawprof just about exactly midway between Ackerman, 71, who is surely one of the best minds of his generation, and Obama, 53. I am only a halfway best mind, but at least I'm not starving hysterical naked, and I've been with the professors for a generation and a half, and I know that the Ackerman generation taught the Obama generation not to believe in the constraints of these legal texts.

What does "hostilities" within the meaning of the War Powers Act really mean? Whatever doesn't make the legal elite — the best minds — howl.

the best minds...
who bared their brains to Heaven under the El and saw Mohammedan angels staggering on tenement roofs illuminated,
who passed through universities with radiant cool eyes hallucinating Arkansas and Blake-light tragedy among the scholars of war...