Article II

Latest in Article II

Federal Law Enforcement

Defending Mueller’s Constitutional Analysis on Obstruction and Faithful Execution

The extent to which federal obstruction of justice statutes apply to the president, especially when concerning actions facially within the office’s powers under Article II, has been hotly contested at least since President Trump fired FBI Director James Comey in May 2017.

Executive Power

How Can the President Obstruct Justice?

Earlier today, Josh Blackman penned on this site a cogent piece arguing that a president cannot commit the crime of obstruction of justice using valid exercises of his Article II powers as president. There is a lot in Blackman’s article with which I agree, and I urge all readers inclined to race to the judgment that President Trump has obstructed justice to read it carefully. But I ultimately come to a different conclusion—at least theoretically.

Executive Power

Obstruction of Justice and the Presidency: Part I

President Donald Trump’s lawyer, John Dowd, asserted that the “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution's Article II] and has every right to express his view of any case.” In a follow-up interview, Dowd added that the president “has more power and discretion on

AUMF

A Daisy Chain of Associated Forces? On the Potential Use of Force in Niger Against al-Mourabitoun

[Update: Several people reached out after I posted last night, drawing attention to the fact that al-Mourabitoun (also spelled al Murabitun) apparently reunited with AQIM after its initial separation from the group. On the other hand, others reached out to point to indications that the particular leader at the center of the current storm—al Sahraoui—may still lead a splinter faction that resisted/resists the return to the AQIM fold.

China

It's a Good Idea, but Congress Can’t Require the U.S. Navy to Make Port Calls in Taiwan

The Senate Armed Services Committee voted on Wednesday to send the National Defense Authorization Act (NDAA) for 2018 to the full Senate. The bill contains a provision “re-establishing regular ports of call by the U.S. Navy at Kaohsiung, or any other suitable ports in Taiwan and permits U.S. Pacific Command to receive ports of call by Taiwan.” If carried out, this provision would represent a dramatic shift in U.S. Taiwan policy.

War Powers

War Powers and the Su-22 Episode: Third-Party Defense of Coalition Partners

Early Sunday evening, a US Navy F/A-18 Super Hornet shot down a Syrian Air Force Su-22 that had just completed a bombing run targeting US-backed Syrian Democratic Forces (SDF) in the Raqqa region. The episode raises important questions under the U.N. Charter (see Adil Ahmad Haque’s analysis here). But what about U.S. domestic law?

AUMF Reform

Section-by-Section Analysis of Rep. Schiff's AUMF Proposal

As several colleagues noted last week, Representative Adam Schiff has revived his effort to get Congress to replace the 2001 and 2002 AUMFs with a new “Consolidated AUMF” that would explicitly name the Islamic State (he had a similar bill in the last Congress, which Jack endorsed here). What follows below is a section-by-section analysis of H.J. Res.

Privacy and Civil Liberties Oversight Board (PCLOB)

The President's Power (Not) to Nominate Officers? Paralyzing an Agency Through Attrition

There are many tools available to a president who seeks to scale back the scope and authority of an administrative agency. He can push to cut the agency's budget. He can embrace legal theories and litigation strategies that interpret the agency's statutory authority narrowly. He can try to appoint leadership that shares his reductionist agenda (and he can try to remove incumbent leaders who don't). And at the extreme, he might seek legislation formally shrinking the agency's authority or even abolishing the agency outright.

Syria

The (Limited) Ground Combat Mission Spreads to Syria

[UPDATE: The Pentagon has released the transcript of a press briefing today, addressing the SOF deployment to Syria among other things. The DOD official explained that, for now, these operators will not accompany the units they assist when those units go into the field, in contrast to current policy for at least some circumstances in Iraq.

War Powers

President Obama Sends War Powers Letter to Congress Regarding 300 Troops Headed to Cameroon

Today, President Barack Obama sent a War Powers letter to Congress noting that as of October 12, 2015, approximately 90 U.S. Armed Forces personnel began deploying to Cameroon "with the consent of the Government of Cameroon." According to the letter, the deployment is in "furtherance of U.S. national security and foreign policy interests" consonant with Article II powers of the president.

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