[Ilya Somin] Obama’s constitutional legacy

President Barack Obama gives his farewell address.

Last week, President Barack Obama gave his farewell address. Today is his last full day in office. Now is therefore an appropriate time to begin to assess his legacy, including his legacy for American constitutional law.

Any such early assessment must be provisional, at best. We do not yet have sufficient historical distance from Obama’s time in office to reach anything approaching definitive conclusions. Still, we can at least make a start.

Obama deserves credit for helping to push the struggle for same-sex marriage to a successful conclusion, for appointing some highly capable judges (despite flaws in their judicial philosophy), and for causing the Supreme Court to establish some valuable precedents protecting federalism, property rights, and religious freedom (albeit, often unintentionally). On the other hand, we may well have occasion to rue his overly expansive approach to executive power, particularly when it comes to initiating wars without congressional authorization.

I. The Loaded Gun Obama Will Leave Trump.

Perhaps the most important constitutional legacy of the Obama administration is one that does not get nearly as much attention as it deserves: by starting two wars without the constitutionally required congressional authorization, Obama established dangerous precedents that can be used by Donald Trump and other potentially unscrupulous successors. In the case of both the 2011 war against Libya and the still-ongoing war against ISIS, Obama relied on flimsy legal pretexts to to initiate wars.

To his credit, Obama has since admitted that the Libya intervention was his “worst mistake.” But he still refuses to recognize that it was unconstitutional, or that its dubious legal rationale had any connection to the sorry outcome.

In both the Libya and ISIS conflicts, the Obama administration stopped short of claiming, in the fashion of John Yoo, that the president has unlimited inherent power to start wars. But the rationales they relied on instead are not much better. In the Libya case, for example, the administration advanced the ridiculous theory that the Libya conflict was not a real war (or even a case of “armed hostilities” covered by the War Powers Act) because “U.S. operations [in Libya] do not involve sustained fighting or active exchanges of fire with hostile forces.” You don’t have to be a law professor like Obama to understand that launching numerous air strikes for the purpose of overthrowing a government qualifies as war, and certainly as “armed hostilities.” If it does not, all sorts of other large-scale military interventions can be justified on similar grounds. Similar problems arise from the administration’s attempts to stretch the 2001 and 2002 congressional authorizations for the use of military force to cover the conflict against ISIS. These too are holes that Donald Trump – or some other future president – could potentially drive a truck through.

Obama’s actions have, quite literally, left Trump a loaded gun he could potentially fire almost any time he wants to. Actually it’s an entire army of loaded guns, to say nothing of loaded missile launchers and aircraft carriers. Hopefully, Congress will reassert its constitutional authority over this important field. Principled lawmakers like Democrat Tim Kaine and Republican