AULPB Symposium: Presidential Powers under the Constitution

War Powers Act and Targeted Killings

During the second panel of the American University Legislation and Policy Brief’s 2020 Symposium, the members discussed the War Powers Act and the legality of targeted killings. The panel, moderated by WCL Professor Louis Caldera, consisted of Chris Edelson (Assistant Professor at American University School of Public Affairs), Ilya Somin (Professor of Law at George Mason University), and Mark Rotenberg (Adjunct Professor at WCL). Unlike the previous panel, the members agreed on most issues and argued very little. 

War Powers Act

When discussing the War Powers Act and other pieces of legislation regulating the President’s war making abilities, all three agreed that Congress needs to reassess its role in war. The panelists all agree that Congress needs to strengthen the War Powers Act. While the Act tries to strike a balance between the role of the President in responding to emergencies and Congress in approving war, it is very weak. Professor Edelson disclaimed that nothing can stop a bad president from making bad decisions, but Congress can reassert its role in deciding to go to war. Professor Somin believed that the 2002 AUMF should be repealed, since Saddam Hussein no longer controls Iraq, and that the 2001 AUMF should be clarified, or even expanded to specifically target ISIS. Professor Rotenberg also added that AUMFs should include a sunset provision and more specific language to tailor the President’s war engaging authority. 

Targeted Killings

Under the Constitutional authority of the President, all three members of the panel agreed that the President can legally target and kill individuals planning and engaged in imminent attacks. When applying this issues, the panelists focused primarily on President Trump’s recent targeted killing of Qasem Soleimani. Professor Edelson analyzed, through the Jackson Youngstown Concurrence, that the President did not operate in a circumstance of maximum authority, because he did not act under Congressional authority. While the President argued that the 2002 AUMF authorized the action, Professor Edelson believed this statute to no longer have relevance since Congress intended its use to overthrow Saddam Hussein (which occurred long ago). While the President does not have statutory authority, Professor Edelson believed that a targeted killing could be appropriate under the President’s Constitutional authority if used to repel an attack. 

Both Professors Somin and Rotenberg agreed with this argument and believe that a President may target individuals, especially in the theater of war. Professor Somin argued that since Soleimani took direct action against the United States in Iraq, he may be targeted. Professor Rotenberg expanded this idea, saying that as Commander in Chief, the President may take action against individuals targeting actively engaged military personnel. When questioned on politically motivated targeted killings, the panelists made key distinctions in scenarios. First, all three stressed the prohibition on assassinations, killing solely for political purposes. However, in circumstances like Soleimani, where the individual engages in terrorist activities and serves as a member of a foreign government, the situation is difficult. Professor Somin identified a difference between killing someone for a political advantage (potentially more akin to an assassination), to timing a strike a for a political advantage (while morally wrong, may still be legal). 

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