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.
That is an interesting paper, and I especially appreciated the lengthy investigation into the UN's (often alleged), "notion of collective security".
I agree with Steven that the War Powers Act is on shaky (technical) constitutional footing. But, I don't think the Resolution in and of itself is particularly unreasonable. In fact, it seems very reasonable, and I don't believe it violates the spirit of the President's inherent powers as Commander-in-Chief.
My biggest problem with Libya as it relates to the WPA isn't Obama's flagrant disregard for US law, nor is it the Congressional abdication of oversight, but it's with the media.
Obama is a politician, and as such, I fully expect him to be a lying two-faced charlatan. Why would anyone believe that he would behave in a manner that is consistent with his pre-election positions. Clearly, all he cares about is political expediency.
And, I'm not at all surprised by our near-comatose Congressional leaders. This is a complicated, confusing and potentially unpopular discussion - OF COURSE they're going to avoid it because that's their M.O. While they love to have Congressional hearings about things that don't have any real importance or relevance - like steroids in baseball or the NCAA BCS - actual constitutional issues like making war are completely ignored, especially when there's a Dem in the White House.
But, where's the traditional media in this? Why wasn't there a "Countdown to Day-60" , where each night the broadcast news anchors beat the drums of "Constitutional Crisis" over Obama's refusal to recognize the War Powers Act. Does anyone think that wouldn't have happened if GWB was still in office and had just committed US forces to their 3rd on-going war?
Reply to this commentLinkReport Abuse>"I’m inclined to agree that the War Powers Act is constitutionally dubious"
Yeah, it's constitutionally dubious for Congress to delegate it's war making power to the President.
Reply to this commentLinkReport Abuse>"I don't believe it violates the spirit of the President's inherent powers as Commander-in-Chief."
The presidents powers as Commander-in-Chief are only supposed to be activated once Congress authorizes him to conduct military action. The idea that the President could initiate a war on his own was considered, and rejected, by the Framers of the constitution.
Reply to this commentLinkReport AbuseThe idea that the President could initiate a war on his own was considered, and rejected, by the Framers of the constitution.
---
Tell that to Thomas Jefferson.
Reply to this commentLinkReport AbuseGo away, you ignorant troll. Come back when you've gotten an education.
Reply to this commentLinkReport AbuseSo much anger when you find out your favorite myths have no basis in reality. Sad.
Reply to this commentLinkReport Abuse> Tell that to Thomas Jefferson.
MarW has not even READ the article that is the subject of Hayward's post! It says:
Intent of the Framers. Individual quotations can be, and regularly are, drawn out of context and assumed to represent a factitious collective intent. It is difficult to read the primary sources, however, without drawing the same conclusion drawn by Abraham Lincoln. He said:
The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.
Chief Justice William Rehnquist, quoting Justice Robert Jackson in Dames & Moore v. Regan (1981), shared Lincoln’s belief that the Framers rejected the English model. He said: “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.”
-----
And here:
External Link
Commander-in-Chief
The British model gave the king the absolute power to make war. The American framers repudiated that form of government because their study of history convinced them that executives go to war not for the national interest but to satisfy personal desires of glory, ambition, and fame. The resulting military adventures were disastrous to their countries, both in lives lost and treasures squandered. I have submitted to your subcommittee a number of my recent articles that elaborate on the lessons drawn from that history.
At the Philadelphia Convention, only one delegate (Pierce Butler of South Carolina) was prepared to give the President the power to make war. He argued that the President “will have all the requisite qualities, and will not make war but when the Nation will support it.” Roger Sherman, a delegate from Connecticut, objected: “The Executive shd. be able to repel but not to commence war.” Elbridge Gerry of Massachusetts said he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” George Mason of Virginia spoke “agst giving the power of war to the Executive, because not to be trusted with it; . . . He was for clogging rather than facilitating war.”
The debates at the Philadelphia Convention and the state ratification conventions underscore the principle that the President had certain defensive powers to repel sudden attacks but anything of an offensive nature (taking the country from a state of peace to a state of war) was reserved to Congress. That understanding prevailed from 1789 to 1950, when President Harry Truman went to war against North Korea without ever coming to Congress.
--------
In short, just as flenser said, the idea that the President could initiate a war on his own was considered, and rejected, by the Framers of the constitution. MarkW is the one whose beliefs have no basis in reality.
Reply to this commentLinkReport AbuseSo the fact that Jefferson went after the Barbary Pirates without getting a declaration of war is irrelevant to you guys?
Reply to this commentLinkReport Abuse@MarkW - "So the fact that Jefferson went after the Barbary Pirates without getting a declaration of war is irrelevant to you guys?"
You do realize that Congress passed legislation in 1802 that specifically authorized the President of the United States (Jefferson at the time) to take military action against the Barbary Pirates?
Jefferson didn't need a Declaration of War because Congress had already ceded to him the authority to act.
If you read the history of the tat particular time, Jefferson on multiple occasions goes out of his way to inform Congress of this intentions, and he even asks for the authorization that he eventually receives.
It's fallacious to simply say Jefferson acted without a Declaration of War because he certainly acted with express and explicit Congressional authorization.
Reply to this commentLinkReport AbuseJefferson did not make war without Congressional approval. He got the equivalent to an Authorization for the Use of Military Force from Congress.
Stop digging anytime you like...
Declaration of War
Barbary Pirates, February 6, 1802
An Act for the Protection of the Commerce and Seamen of the United States, Against the Tripolitan Cruisers.
WHEREAS the regency of Tripoli, on the coast of Barbary, has commenced a predatory warfare against the United States:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, that it shall be lawful fully to equip, officer, man, and employ such of the armed vessels of the United States as may be judged requisite by the President of the United States, for protecting effectually the commerce and seamen thereof on the Atlantic ocean, the Mediterranean and adjoining seas.
SEC. 2. And be it further enacted, That it shall be lawful for the President of the United States to instruct the commanders of the respective public vessels aforesaid, to subdue, seize and make prize of all vessels, goods and effects, belonging to the Bey of Tripoli, or to his subjects, and to bring or send the same into port, to be proceeded against, and distributed according to law; and also to cause to be done all such other acts of precaution or hostility as the state of war will justify, and may, in his opinion, require.
SEC. 3. And be it further enacted, That on the application of the owners of private armed vessels of the United States, the President of the United States may grant to them special commissions, in the form which he shall direct, under the seal of the United States; and such private armed vessels, when so commissioned, shall have the like authority for subduing, seizing, taking, and bringing into port, any Tripolitan vessel, goods or effects, as the before-mentioned public armed vessels may by law have; and shall therein be subject to the instructions which may be given by the President of the United States for the regulation of their conduct; and their commissions shall be revocable at his pleasure. Provided, that before any commission shall be granted, as aforesaid, the owner or owners of the vessel for which the same may be requested, and the commander thereof, for the time being, shall give bond to the United States, with at least two responsible sureties, not interested in such vessel, in the penal sum of seven thousand dollars; or, if such vessel be provided with more than one hundred and fifty men, in the penal sum of fourteen thousand dollars, with condition for observing the treaties and laws of the United States, and the instructions which may be given, as aforesaid; and also, for satisfying all damages and injuries which shall be done, contrary to the tenor thereof, by such commissioned vessel; and for delivering up the commission, when revoked by the President of the United States.
SEC. 4. And be it further enacted, That any Tripolitan vessel, goods or effects, which shall be so captured and brought into port by any private armed vessel of the United States, duly commissioned, as aforesaid, may be adjudged good prize, and thereupon shall accrue to the owners and officers, and men of the capturing vessel, and shall be distributed according to the agreement which shall have been made between them, or, in failure of such agreement, according to the discretion of the court having cognizance of the capture.
SEC. 5. And be it further enacted, That the seamen may be engaged to serve in the navy of the United States for a period not exceeding two years; but the President may discharge the same sooner, if in his judgment, their services may be dispensed with.
APPROVED, February 6, 1802.
Reply to this commentLinkReport Abuse