War Powers Resolution: Libya

Ackerman Responds To Morrison

By Jack Goldsmith
Saturday, June 4, 2011, 6:37 PM

Bruce Ackerman has responded on Balkinization to Trevor Morrison’s review of Ackerman’s book The Decline and Fall of the American Republic.  Ackerman’s opening paragraphs explain his post and have all the relevant links:

In a recently published book review of The Decline and Fall of the American Republic, Professor Trevor Morrison vigorously contested my critique of the Office of Legal Counsel and the Office of White House Counsel . Given the seriousness of his effort – 62 pages in the Harvard Law Review –I owe him a response, which has just been published on-line by the Review.

I’m curious to hear how well you think I’ve done countering his critique. But for now, I want to relate the larger themes of the Morrison-Ackerman debate to the current issues raised by President Obama’s breach of the War Powers Act. The statute famously requires presidents to gain Congressional consent within 60-days of his initiation of “hostilities.” But he hasn't done so.

As Oona Hathaway and I have pointed out in a series of essays, this is a very serious breach of a provision whose constitutionality was explicitly upheld in an 1980 OLC opinion; it is also unprecedented; and the reasons that have been informally offered for the breach are insubstantial.

This remarkable breach by Obama is an embarrassment for Morrison’s general argument. . . .