The Corner

Democratic Hypocrisy on War Powers

Looks like the isolationist wing of the Tea Party movement has gotten a little traction on the question of war powers.  Yesterday, the Senate voted to table a motion — introduced by Sen. Rand Paul — to declare as the sense of the Senate that “The President does not have 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.”

The only ten Senators who voted in approval of that language (for parliamentary junkies, these were votes against tabling the motion) were Republicans.  They were Collins, DeMint, Ensign, Johnson, Lee, Moran, Paul, Sessions, Snowe, and Toomey.  Of course, several of these are freshmen Republicans who were Tea Party favorites.

As I’ve explained in an earlier post on The Corner, and in more detail over at Ricochet, I think this view of war powers is mistaken as a matter of constitutional practice and of the original understanding of the Constitution at the time of its ratification.  I won’t repeat those arguments here, other than to point out that the Constitution gives Congress a singular, unique tool to stop any war it disagrees with — the power to cut off funds.  If these senators think that President Obama is waging an unconstitutional war in Libya — and I would be the first to admit that the conflict does not involve an actual or imminent threat to the nation’s security — they should refuse to approve any appropriations for the Defense Department that would go to pay for our military and intelligence operations there.  I hope that these Republicans will reconsider their views after giving some deeper thought to the way that the separation of powers really works.

But the more important story — which no doubt will pass without mention in places like the New York Times — is that every single Democratic senator voted against the Paul language. This represents a hypocritical reversal from their position during the Bush years, when they accused Republicans in the administration of violating the Constitution, seeking to place the president above the law, and so on, whenever Bush exercised his commander-in-chief power to manage the War on Terror.  These are the same folks who used to file federal lawsuits against Presidents Reagan and Bush in the 1980s and 1990s not just for major interventions like the 1991 war against Iraq, but even minor operations like escorting Kuwaiti tankers in the Persian Gulf.  Or used to raise talk of impeaching President Bush in the 2000s for exercising the commander-in-chief power to decide on military strategy and tactics.

Now the Democrats have a clear vote on the record to show that their objections evaporate when the president happens to be a Democrat.  Their attacks on Republican presidents were always about partisan political advantage, and not about constitutional principle.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.

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