War Powers Charade

by Steven F. Hayward

Over on Campaign Spot brother Jim Geraghty beats me to the link to the Bruce Ackerman/Oona Hathaway WaPo op-ed noting the Obama administration’s willful ignoring of the War Powers Act in the ongoing Libya escapade. It hardly even seems worth the bother to point out how much the Left would be screaming about “lawlessness” if Bush were still on the scene. (There’s a an app for that now, isn’t there?)  

So the War Powers Act now takes is place along side the Independent Counsel statute as a measure that liberals discard when it turns out to be applicable to Democratic presidents. I’m inclined to agree that the War Powers Act is constitutionally dubious, and am tempted to say “good riddance.” But there is more to the story than just that Vietnam/Watergate-era law to constrain executive military latitude and require the involvement of Congress in adventures like Libya. My guru in these matters is Michael Glennon of Tufts, who offers a wide-ranging essay in the Harvard National Security Journal thoroughly fisking the Obama Justice Department’s legal justification for the Libyan operation. He helpfully includes all the pre-2008 statements of Obama, Biden, Hillary Clinton, and DoJ lawyer Harold Koh emphatically on the other side of the question. Drawing on legal precedents and perspectives going back to the Founding, Glennon concludes with a ringing attack on the hypocrisy of the entire leadership of the Obama White House: 

Millions of people voted for “change we can believe in,” thinking that the election of 2008 meant an end to an era of extravagant claims of presidential power. The President, Vice President, Secretary of State and State Department Legal Adviser take an oath, after all, to support the United States Constitution, not the United Nations Charter. These officials bear a responsibility for maintaining the credibility of our system, which rests, in the end, upon the believability, reliability, and integrity of our highest constitutional officers. It’s not as though their earlier statements were made off-the-cuff, and it’s not as though these officials had no acquaintance with constitutional law. Their statements were deliberate, studied pronouncements by individuals schooled in the history and interpretation of the Constitution, with years of experience in the highest councils of government and legal education. What credibility costs are borne by the United States when the declarations of such officials—measured pronouncements on the meaning of the most fundamental precepts set out in the Constitution — turn out to be empty words?

As the Internet saying goes, it’s worth reading the whole thing.

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