Up until this week, I would have said that George W. Bush was the most aggressive president in modern times in exercising executive power. Now, I can honestly say President Obama is giving "W." a run for his money. This week President Obama is creating a dangerous precedent that will be cited by future presidents whenever they want to use military force without congressional oversight.
Friday May 20th marks the 60th day since the president notified Congress that he committed U.S. military forces in Libya. Under the War Powers Act (WPA), the president may order military action on his own under certain conditions. But the WPA then gives the president 60 days to gain congressional authorization; if none is forthcoming, the president must then withdraw all forces within 30 days.
Back in March, the president's decision to use military force in Libya seemed to make sense. Our military might was used for beneficial purposes: coming to the aid of Libyan rebels and preventing what many worried would be a massacre of civilians in Benghazi by troops loyal to Gaddafi.
The president notified Congress, as is required under the WPA. The official letter from the White House followed the requirements of the WPA, describing the basis, scope, and expected duration of the military action. But the President never did the next thing required by the Act: ask for congressional authorization.
I'm not sure why. Obama enjoyed public support for the involvement, he had some prominent Republicans (including John McCain) on his side, and a request for authorization would have put House Republican leadership in a tough political bind if they resisted.
Now, Obama is the one in a bind, and it's of his own making.
The War Powers Act is law, and has been since 1973. The Act is not without its constitutional problems. It arguably bypasses the constitutional mandate that Congress declare war before engaging in hostilities. Some legal scholars have argued that it improperly constrains the president's Commander-in-Chief power.
Nevertheless, every president since Nixon has followed its terms, and both the president and Congress have acted consistently with it. Given the vagueness of the constitutional provisions about war powers, the WPA has proven to embody a useful understanding of how the Executive and Congress should share military responsibilities in a world in which the initial decisions to fight often need to be made quickly and in secret, but the decisions to sustain military action is something that ought be shared among democratically accountable branches. The Framers' system of checks and balances is there for a reason, after all.
So Obama can ignore the WPA only if he thinks it doesn't apply or if he is convinced that it is an unconstitutional limitation on his powers. The former assertion is odd indeed. We are certainly involved in military action. The fact that NATO is now putatively in control of the operation does not seem to avoid the issue, especially when the top of NATO's chain-of-command is an American and when American service members continue to drop bombs, fire missiles, and control drones.
An assertion that the WPA is an unconstitutional limitation on executive power would be even less convincing at this point. One might assume that the president's Commander-in-Chief power allows him to use military force unilaterally when necessary in an emergency, or even in limited circumstances to protect national interests when time is of the essence. The initial foray into the Libyan hostilities might be justified this way, WPA or not. But such executive authority would wane over time, as a shared role by Congress became more realistic. Otherwise, the president could commit the nation to hostilities for an indefinite time, with little meaningful oversight.
So on Saturday, the constitutional and statutory clock will start ticking. If Obama doesn't ask for congressional endorsement or end the nation's involvement within thirty days, then he will be asserting himself in a way that no president has in modern history. Courts won't step into this constitutional hornet's nest. In this area of constitutional law, what matters most is not what courts say but what happens in practice. For the last 40 years, the practice has been to follow the WPA. Apparently that's about to change.
Progressives might not worry too much about all of this while Obama is in charge. But this precedent won't vanish when a president Romney, Pawlenty, or Palin is in the Oval Office. Undermining the WPA could be one of Obama's lasting legacies, and it will not be a good one.
Follow Kent Greenfield on Twitter: www.twitter.com/kentgreenfield1
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Who ordered US citizens to buy health care insurance?
Who ordered the bailout of GM and Chrysler?
They all suck when it comes to following the US Constitution.
Even worse, is that we, US citizens, love it as long as the violator is in our preferred gang.
It's not law. It's farce. By contrast the North Atlantic Treaty, its protocols, and relevant statutes are indeed law. The question is whether they authorize US participation in NATO intervention in Libyan civil war.
http://avalon.law.yale.edu/20th_century/warpower.asp
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You should actually read it.
If that were law, Congress would have removed its own power to grant general statutory authorizations like the NAT and related statutes.
(2) If Congress were to command the moon to be made of green cheese, that would not be law in any meaningful sense. It would be farce.
(3) If Congress commanded the moon to be made of basalt and gabbro (let us assume for the sake of argument that those are the kinds of rock it is in fact made of), it would still be farce.
We agree on (1). I presume that we can agree on (2). I hope we can also agree on (3)
I say that Congress commanding the Constitution to say something is in the same category with commanding the moon to be made of something. Maybe that's what the Constitution says, or maybe it isn't. Either way, the Constitution says what it says, and it's a joke for Congress command it.
Published: May 20, 2011
Following is a letter President Obama sent to the Senate and House leaders John A. Boehner, Nancy Pelosi, Harry Reid, and Mitch McConnell to update them on the United States’ military actions.
"On March 21, I reported to the Congress that the United States, pursuant to a request from the Arab League and authorization by the United Nations Security Council, had acted 2 days earlier to prevent a humanitarian catastrophe by deploying U.S. forces to protect the people of Libya from the Qaddafi regime. As you know, over these last 2 months, the U.S. role in this operation to enforce U.N. Security Council Resolution 1973 has become more limited, yet remains important. Thus, pursuant to our ongoing consultations, I wish to express my support for the bipartisan resolution drafted by Senators Kerry, McCain, Levin, Feinstein, Graham, and Lieberman, which would confirm that the Congress supports the U.S. mission in Libya and that both branches are united in their commitment to supporting the aspirations of the Libyan people for political reform and self-government. ..."
http://www.nytimes.com/2011/05/21/world/africa/21libya-text.html?_r=1
I still cannot find any Congressional authority for his newest war.
Considering the economy, if Obama is reelected, it will be a reflection on the ignorance of the voters in America.
This admin has reversed the course we were on heading off a cliff. This admin got health care reform passed and Wall Street reform passed. This admin has done more good in two years then any before it on recent history. If President Obama is NOT reelected it will not be a good reflection on this country.
The interesting question is how much voters understand about separation of powers issues.
When Bush was President, the left bashed him daily for voilating laws and voilating civil rights. But when a liberal President is in charge, they suddenly become silent. I think most people see the double standard. I am sure MSNBC will also capitulate on this issue as well, and find some weak argument for defending Obama once again. Obviously, Democrats can do no wrong.
He has violated the US Constitution even more than former President Bush.
I knew there would come a time when we will be in full agreement and today is that day (which arrived much sooner than expected), not because you are critical of Obama, but because I share your views on the Constitution. The last paragraph is very similar to what I said when the Republicans were thinking of implementing the "nuclear option": be careful what you wish for, since you may not like it when you inevitably end up on the other side.
An increased number of electronic warfare aircraft over the mediterranean is not a very substantial presence. My understanding is that US forces have not been involved in striking libyan forces since the first days of the no-fly zone.
Surely the WPA does not demand congressional approval every time an aircraft flies near a place where forces from NATO are in intermittent action.
Amongst the strange details of the WPA is the apparent ability of a president to do absolutely what they like for sixty days, after writing a letter. Since it would take less than an hour to destroy the world, the act seems to allow too much leeway.
Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.
No U.S. troops are in harms way, no boots on the ground, and none of them has been harmed in this episode thank God.
If Congress decides not to extend the engagement, then that's that.