Somewhere, Richard Nixon is smiling. In 1973, he vetoed the War Powers Act, insisting that it was unconstitutional. Congress overrode him, but almost every one of Nixon’s successors has agreed with his assessment of the resolution.
It took Pres. Barack Obama, though, to rip the War Powers Act into little pieces and sprinkle it over his Libyan intervention like the confetti in a premature victory parade.
The thrust of the War Powers Act is clear enough: Sixty days after reporting the start of a military intervention, the president must secure congressional authorization or a declaration of war, or remove our forces. Presidents have typically acted “consistent with,” but not “pursuant to,” the law’s provisions — basically, humoring Congress while never conceding the law’s constitutional legitimacy.
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President Obama is dispensing with all pretense. He’s simply ignoring the law. This is the kind of highhandedness that Dick Cheney was always accused of, although the Bush administration was old-fashioned enough to get prior congressional approval of its wars.
Obama launched the Libya War on his say-so, and doesn’t even want to bother to explain to Congress why the War Powers Act doesn’t apply to a conflict begun some 80 days ago. On Libya, the Obama administration is making a gigantic rude gesture to Congress and all the liberal professors and national-security experts who have made such a fetish of the War Powers Act through the years.
Before tangling with Moammar Qaddafi, Obama counted himself among their number. As a senator, he maintained, “The president does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”
President Obama joins a long list of presidents going back to Thomas Jefferson whose views of the limits of executive power didn’t survive their first contact with the presidency.
President Obama isn’t doing his reputation for consistency or the legal theories of his supporters any favors, but he is paying a backhanded compliment to the Constitution. The War Powers Act is an excrescence on the American constitutional order that deserves to be the dead letter that President Obama is making it. The president’s inherent powers as commander in chief do not depend on affirmative acts of Congress.
What Congress can do is wield its own powers — most decisively, the appropriation of funds — to limit or end a military action. Of course, Congress usually refuses to do that, since it involves an action for which it could be held politically accountable. Predictably, the grand confrontation between the legislative and executive branches over Libya has been an instance of the cowardly fighting the disingenuous.
The Obama administration implausibly pretends that the president’s posture hasn’t changed on the War Powers Act. A spokesman argues that its briefings of members of Congress constitute compliance. But the resolution doesn’t call for collegial chats after 60 days. The administration’s other possible defenses — that Libya isn’t really a war, that it’s a piddling war, that we are “leading from behind” — don’t help, either. The act doesn’t make exceptions for small, euphemistic wars waged under NATO auspices by reluctant presidents.
If this were the Bush administration, Nancy Pelosi would be agitating for impeachment. Yale law professor Bruce Ackerman has written in despair that “Obama is breaking new ground, moving decisively beyond his predecessors.” At this rate, he notes, “history will say that the War Powers Act was condemned to a quiet death by a president who had solemnly pledged, on the campaign trail, to put an end to indiscriminate warmaking.”
History comes full circle. In the aftermath of Vietnam and the midst of Watergate, liberal Democrats passed the War Powers Act as part of a broad assault on presidential powers. The act reached the end of the line with a liberal Democrat in the White House, who wanted to avail himself of the full sweep of his powers. No doubt, Nixon wouldn’t just relish the result, but appreciate the irony.
Sorry, I don't agree that the War Powers Act is unconstitutional.
Congress is specifically granted many military-related powers. More time in section 8 is spent on Congress's military-related powers than any other topic:
From section 8:
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
...
Congress is explicitly granted many powers related to when to decide to use military force: piracies and felonies committed on the high seas, and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
Those instances cover all legitimate uses of military force.
Furthermore, all the rules about how the military should be run are to come from Congress:
To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States
Meanwhile, let's look what the Constitution says about the President's role:
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;
By the sheer weight of powers granted, Congress is clearly, by inference, in the driver's seat. Given that the Constitution speaks so much about Congresses powers to decide when to use military force in so many situations, it is abundantly clear that the decision to use force, not just the power to declare war, is in the hands of Congress.
Furthermore, the WPA falls under "
To make rules for the government and regulation of the land and naval forces;" -- isn't an essential part of the "government and regulation" of land and naval forces the circumstances under which they may be used?
Congress is fully justified and empowered to make rules to clarify to the President under what circumstances they wish to allow him to engage in force, and under what Congressional supervision he will operate.
There is nothing conservative about Mr. Lowry's advocacy of a Constitutional misreading that further empowers the imperial Presidency.
Such a terrible power as the power to bring the U.S. armed forces to bear on a target MUST be limited by the approval and oversight of Congress. It's tyranny to elevate the President's role so high as to allow him to thumb his nose at Congressional directives regarding the use of the armed forces.
I would sacrifice one of my front teeth for the chance to ask President Obama what he thinks Senator Obama would've said had Bush done what he is doing regarding Libya and Congress.
Killing the WPA: Obama’s hypocrisy is responsible for one good thing - although I predict a resurrection of the WPA the moment a Republican enters the White House.
WPA or no WPA why the heck are we even involved in Europe's war to retain oil sources?
If you put a flag on each oil drilling site you will see that this is truly a war for oil (UNLIKE Iraq or Afganistan).
Fine we have some murky NATO connection, but which NATO nation was attacked or even threatened?
This is meddling for a different reason. Daffyduck (excuse me, Qaddaffi) is standing in the way of yet another Muslim Brotherhood overthrow. That's why Mr. Obama has involved us militarily and for no other reason.
It is also why he cannot make a plausible argument for approval if he adheres to the WPA requirements.
WPA is an enigma. In an effort to take back some of what it had ceded by default to the executive, Congress institutionalized the ceded portion which it didn't really want to take back. Only in that sense is WPA unconstitutional, and only in that sense is it an 'excrescence'. So not only may Congress rightly demand (IAW WPA since day 61) that the President remove us from Libya, but it can rightly demand (IAW the Constitution since day 1) that the President remove us from Libya. But, of course, it won't; and he won't; and it will remain funded, because both branches are hopelessly inept and corrupt.
WPA is an enigma. In an effort to take back some of what it had ceded by default to the executive, Congress institutionalized the ceded portion which it didn't really want to take back. Only in that sense is WPA unconstitutional, and only in that sense is it an 'excrescence'. So not only may Congress rightly demand (IAW WPA since day 61) that the President remove us from Libya, but it can rightly demand (IAW the Constitution since day 1) that the President remove us from Libya. But, of course, it won't; and he won't; and it will remain funded, because both branches are hopelessly inept and corrupt.
The WPA was only meant to be used when the US was under assault or under great pressure militaristically. Obomba has totally misused it, is now breaking it and no one, no one in Congress is nay-saying him. Amazing. Our system is broken.
It's not the system Shaeri, it's the spineless opportunists we elect to office enmasse.
Anyone professing strong opinions or beliefs on ANYTHING is immediately cast out of the election process. Radical, crazy, neo-nazi, et al are the descriptors assigned.
What remains then are those without principle, scruple, or ethics.
It is no small wonder that our republic has been able to function with such grandees for as long as it has.
A simple review of the recent news proves my point.
The WPA just clarifies what the constitution already says. The President can defend the nation against actual or imminent threat. In other words engage in purely defensive warfare for a short time. He is not allowed to engage in offensive warfare without congressional approval. Once the congress approves, congress needs to get out of the way and let the President and the Generals/Admirals do their job. The constitution and the WPA are both quite clear on this issue.
It also passes the sanity check. We want the President to be able to react rapidly to events beyond his control and take rapid action to defend the country. On the flip side, we do not want one man drawing us needlessly into conflict. If the people, through their representatives in congress want to invest blood and treasure initiating a conflict, that is the choice of the people.
The people have not signed off on Libya. It should be approved by congress or defunded immediately.
It's unconstitutional? When did the Supreme Court rule it unconstitutional?
It's a law. It has not been ruled unconstitutional, to date.
Congress and the president are ignoring a fairly significant law involving billions in expenses, the lives of our citizens and the readiness of our military.
If it's unconstitutional, let it have it's day in court and be done with it. Until that time, it is a law.
It's constitutional because the Supreme Court didn't say it's not? That's your argument?
Where in the Constitution is the Supreme Court vested with the sole responsibility of determining constitutionality?
(hint: it's not in there)
To be sure, the court argued that it had the authority to determine constitutionality in the seminal 1803 case, Marbury v. Madison. But such power is hardly exclusive. The other two branches simply haven't bothered to argue the point. The Constitution can be read and interpreted by anyone. Some, like the first poster, argue that the Constituion is a document of limits, and if it's not precluded specifically, it's permissible. Others argue that the Constitution is a document of allowances, and if it's not specifically provided for, its not permissible.
The document itself lists enumerated powers, not prohibited excesses, so it seems clear that the former version of Constitutional interpretation is incorrect. Don't tell me you can do it because it doesn't say you can't. Tell me you can do it because it specifically says you can.
Congress has no authority to tie the hands of the commander in chief in this manner. They have other ways of dealing with it. But this travesty isn't the proper way.
And I've always said that the irony would run full circle on this one: passed by a democratic Congress over the veto of a republican President to control the perceived excesses of a republican president who ended a war started by a democratic President, this bill was destined to be shredded by the first democratic President who wanted to act while suffering under a republican House. It couldn't have been more poetically written if Shakespeare himself wrote it, nor would it smell any sweeter.
My reading comprehension seems to differ from our first poster's this morning.
When I read "Commander in Chief" in the constitution, I understand that this is not simply a title - without command, responsibilities, and repercussions. It doesn't say "Figurehead in Chief" or "Puppet".
That's for Europe - not the U.S.A.
Congress always has (and has had) the option to de-fund any war-making effort by the Commander in Chief.
In this respect, the WPA was a Nixon-era political anachronism that was unconstitutional then as it is now.
"The president’s inherent powers as commander in chief do not depend on affirmative acts of Congress"
I agree entirely, but the question is does the WPA restrict THOSE presidential powers? I would agree with cloudbuster, JDV and NobodyinParticular that it does not.
Vesting the [unqualified] "executive power" in the President and making him "commander in chief" invested in his office some elements of the royal prerogative that would have been known to the drafters of the Constitution. The King had inherently exercised these powers, even if in practice by that time this was done through an oligarchy of ministers in parliament. But the American founders explicitly did not invest their president with the legislative powers that are also part of Royal Prerogative. They did not define or limit executive power or military command in chief explicitly in the section on the presidency but did do so by what they gave to Congress.
The Royal Prerogative was vast, and it technically remains so, both as an executive and legislative power. Commonwealth governments normally guard it jealously as a matter of form. For example, Canada was the first to hold a parliamentary debate on a declaration of war, in 1939. Britain had already declared war as a matter of prerogative, reflecting the Crown's enduring legislative power to create a state of being by proclamation. In Canada, the government made clear the debate was to sound out the nation, and it eventually declared war in accordance with royal prerogative and made it clear it was doing so. Since then, Commonwealth governments have often held such debates and the course of those debates might influence decisions especially if the government majority is soft or absent, but no government ever concedes it is parliament's decision.
The American Founders explicitly moved this power to Congress, along with many of the other listed military powers of Congress, some of which were also done by the Crown in the British system. They did not do so absent-mindedly.
The Crown's executive power included the command in chief of the forces, itself limited by parliament's power to make rules to govern the army in particular and to control funds for the forces. In Britain, a parliamentary majority could put an end to any campaign it did not like and turf the responsible ministers. The American Founders clearly thought long and hard about how to control warmaking in a separation of powers regime, and clearly decided to give Congress more explicit powers since it cannot so easily get rid of executive officers.
On a related but separate note, it seems to me that with the classical precedents of Greece and Rome so strongly before them, the founders most likely invested the president with the command in chief to prevent legislators appointing one of their own to command in his place, as so often politicized classical military operations. That may seem an archaic concern now in the age of professional armies, but the classical precedents were real to them and they would have had examples in their own time. It is not entirely a trivial issue even now. That fit and proper inherent presidential power is not affected by WPA.
If COngress were to start micromanaging military operations or command appointments, THEN they would be intruding on inherent presidential power. If they deny permission to start a war, or defund it once started, they are exercising their own powers.
A president who wants to not run afoul of all this should either get a declaration of war, AUMF, or demonstrate that the war is necessary in defence of the US. The WPA at most represents Congress codifying methods by which the president can meet this burden and governing how it will react. Indeed, it even extends presidential flexibility for a fast paced modern threat environment. FDR felt obliged to go to Congress for a proper declaration of war when the US had actually been attacked, and he had time to do so. A modern president would have to begin military operations faster than that. The WPA gives him time to do so.
I'm not going to defend Zero, but how does our troops being part of NATO affect this debate?
If the US is part of NATO and NATO collectively decides on military action, does a president have to get congressional approval before agreeing to help NATO? Or has he already gotten that approval implicitly by simply being part of NATO?
Had Obama acted unilaterally without consent, that would be one thing. But he committed our troops to help NATO, didn't he?
I can't figure out what I truly should be outraged about when almost everything he does or doesn't do warrants criticism.
He might be guilty of war crimes for all I know. But are we missing information here?
One fact that might be enlightening on your point about NATO and Congressional OK for a war comes from the membership of the U.S. in SEATO when the Vietnam War got up and running. Congress didn't seem to think that U.S. membership in SEATO made it unnecessary for the President to obtain Congressional approval for making war when they considered how to draft the War Powers Act.
Of course the War Powers Act was really only a way to get Nixon and bring the Vietnam War to a close. Now that we have a Democrat President, we can safely ignore it.
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