Even worse, however, is the continued conduct of open hostilities in Iraq and Syria against the Islamic State despite the refusal of Congress to approve the military campaign. No one questions that the Constitution applies here; but because the two branches are unable to agree on the scope of American intervention, this most crucial of constitutional guarantees—the power of Congress to authorize military action—has gone by the board. This is not entirely the president’s fault—the administration and its allies have repeatedly begged Congress to at least hold hearings on an authorization bill. As is often the case in history, legislators would prefer to stay out of the arena so that they can later claim credit for victory but disclaim any role in disaster.
And just to underline how obsolete Congressional authorization has become, consider that the most searing foreign-policy attacks on Obama arise from the one occasion on which he announced he would not intervene abroad without Congressional authorization—his 2013 decision not to launch airstrikes against Syria without first going to Congress. Whether he was using constitutional caution as an excuse or not, the Constitution clearly required authorization, while the political class of both parties has treated Obama’s caution as contemptible.
As a civil-libertarian, Obama had his limits. Obama hands over to the Trump administration a National Security Agency that is pursuing a robust a program of domestic and foreign surveillance, under the relatively thin constraints provided by the Foreign Intelligence Surveillance Act Amendments of 2008. The Obama administration has been stunningly aggressive in its incursions on news-gathering by reporters, prosecuting leakers under the Espionage Act and demanding the phone records of 20 Associated Press reporters as part of a leak investigation. These were far beyond the previous norms––and are now part of the background practices inherited by the Trump Administration.