Obama Snubs Congress on Libya

The President has commenced military action against Gaddafi's Libya, an action that seems likely to be sustained for a number of weeks or more. How long it will be sustained is difficult to tell because no one seems to know what the policy is. One thing that is notable is that the President has made no attempt to get Congressional approval (note: meeting with leaders of Congress doesn't count).

Congress as a whole has been remarkably quiescent about this. The New York Times mentions it, vaguely, as an afterthought:

Mr. Obama should have brought Congress more into the loop on his decision, and must do so now.

A few Democrats in Congress have shown an admirable consistency. From The Politico:

Reps. Jerrold Nadler (N.Y.), Donna Edwards (Md.), Mike Capuano (Mass.), Dennis Kucinich (Ohio), Maxine Waters (Calif.), Rob Andrews (N.J.), Sheila Jackson Lee (Texas), Barbara Lee (Calif.) and Del. Eleanor Holmes Norton (D.C.) "all strongly raised objections to the constitutionality of the president's actions" during that call, said two Democratic lawmakers who took part.

Kucinich has gone so far as to recommend impeachment of the President but that, after all, is what a Dennis Kucinich is for.

Is President Obama under any obligation to seek Congressional approval for his military intervention? The answer is almost certainly yes, under the terms of the War Powers Act. However, that legislation has never worked very well and is routinely ignored both by Presidents and Congress.

Is the President under a constitutional obligation to seek Congress's approval, as the above named Democrats believe? There is little doubt that, in giving Congress the power to declare war, the Founder's believed they were limiting the power of the President to commit the nation to war. See The Founder's Constitution on Article 1, Section 8, Clause 11.

Unfortunately, that power was never explicitly defined. A declaration of war gives the government certain emergency powers. This includes the power to seize the property and assets of the enemy. It also includes the power to seize the assets of citizens, including commanding industries to produce war materials. It includes the power to suspend habeas corpus. Probably we do not want Congress to declare war unless a real national emergency has emerged.

If the President isn't required to get Congressional approval for military action, that doesn't mean he doesn't need it. Building support for his national security policies in Congress is a big part of his job. That is why modern presidents have almost always sought and received congressional approval for military actions. From the Volokh Conspiracy:

Virtually every major military action undertaken by the US since World War II has either been formally authorized by strong congressional majorities in advance (Vietnam, both Iraq Wars, Afghanistan), or enjoyed strong congressional support without a prior formal vote, though often there was an authorizing vote after the fact (Korea, both Lebanon interventions, Grenada, Somalia, Haiti).

The view that the President must obtain Congressional approval for such actions was affirmed by a freshman senator in 2007.

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.

That, of course, was one Senator Barack Obama. It is difficult to see how this intervention satisfies that standard. Yet President Obama made no attempt to get Congressional approval and I predict that he will not do so. Perhaps that's ok. He did bend over backwards to get approval from the Arab League and the United Nations Security Council.

The reason that President Obama didn't submit his decision for Congressional review is that he would have to explain what he is doing. There's the rub. He doesn't know what he is doing. The New York Times editorial says as much. You can also consult the Washington Post's Richard Cohen, another Democrat in good standing for this view.

In the Oval Office, President Obama keeps busts of his heroes — Abraham Lincoln and Martin Luther King Jr. He should add one of Milton Berle, the so-called Mr. Television of the 1950s. Berle used to signal his studio audience to both continue and stop applauding by holding up one hand to wave them on and another to quiet them. This is the president's Libya policy in a nutshell.

Contrary to Kucinich, the problem with the President's policy in Libya is not that it's unconstitutional. The problem is that it is incoherent. Only the cruise missiles are real.

ps.  Note John Judis at The New Republic. 

I myself would have preferred Obama to have taken leadership several weeks ago in assembling a coalition, and building support, for intervention. If the current coalition had intervened two weeks ago, even with a no-fly zone (which opponents of intervention were claiming would take weeks to impose), Qaddafi would probably be in Caracas by now, and many lives would have been spared. Obama had to be shamed into taking leadership, as Bill Clinton was when French President Jacques Chirac, after a visit to Washington in June 1995, complained that the post of leader of the free world was “vacant.”

Moreover, Obama did the absolutely worst thing—he called for Qaddafi’s ouster, but did not do anything about it, and discouraged others from doing so.

Comments

[unicorn4711]

I don't have much time, but I think there are a few things worthy of pointing out.

If one wanted to argue that Obama's use of force in Libya is unconstitutional, I think they need to accomplish two separate things. First, prove the War Powers Resolution is unconstitutional and then secondly prove that sending US troops into Libya when there is not an imminent threat to the US is beyond the power of the President as Commander-in-Chief.

First, read the oft-cited Youngstown Sheet & Tube. There, the Court states that sources of Presidential power in conflict: "The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself."

There is a relevant act of Congress. Specifically, we still have the War Powers Resolution from the Vietnam War. Before even getting to the text of the Constitution itself one would need to prove the WPR is unconstitutional. Under the WPR, the President can use force abroad without a declaration of war or a Congressional resolution for up to 90 days (60 plus 30 day removal period) so long as he notifies Congress within 48 hours.

Assuming that hurdle is cleared and the WPR is deemed unconstitutional, determining whether or not art. 2 implies power for the President to send troops into battle when there is no threat of imminent attack and no Congressional approval is a matter of debate. I think scholars would come to differing conclusions. My bet is the President probably has powers to act quickly on a short-term basis, but must gain Congressional approval as soon as it is practical to do so.

[larry kurtz]

Great post, Ken. One name not crossing your lips is Biden. It means the code has not yet been broken. Confusion can be good early in the campaign. Those who do not need to know probably don't.

[K.B.]

U: If the President were acting under the War Powers Act (assuming that act is constitutional) it would have to be under this provision: "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." By no stretch of the imagination can any such emergency be said to have occurred in connection with Libya.

Absent such a condition, the President needs prior authorization to send U.S. forces into harm's way. He has no such authorization. Even if there were a qualifying emergency, the President would be required to officially inform the leadership of Congress, which sets the 60 day clock ticking. Did he do so?

Therefore, the President is acting in violation of the War Powers Act. That's ok. As I said, Presidents routinely ignore it.

You say: "My bet is the President probably has powers to act quickly on a short-term basis, but must gain Congressional approval as soon as it is practical to do so." That illustrates the problems with the WPA: how long is a "short term basis"? What does it mean that the President "must" gain Congressional approval? How quick is "quick" action?

Finally: if the President had time to get the approval of the Arab League and the U.N., couldn't he have found time to get the approval of Congress?

[Jimi]

To quote the great Roger Daultry, "Meet the New Boss...."

[larry kurtz]

Strategic ambiguity as defined in the Bush era: http://www.cato.org/pub_display.php?pub_id=6438

[Jimi]

Larry,

Prognosis: "Fail"

"the United States remains committed to a one-China policy and opposes any unilateral decision by either China or Taiwan to change the status quo." -Bush 2003

"The United States government's policy is one China, based upon the three communiqués and the Taiwan Relations Act,"-Bush 2003

"indicate that he may be willing to make decisions unilaterally to change the status quo, which we oppose."-Bush 2003

"the US reply is that its "one China policy" remains unchanged"-Bush Administration 2002

You reference an article from 2006 on Taiwan to show that the United States policy, which had been in place in reference to Taiwan since WWII, proves "Strategic Ambiguity" on the part of the Bush Administration?

You do relize that the Independence movement for Taiwan was started by dissidents in Japan and the U.S. after they fled, and since WWII the United States Government had always taken the side of China.

[larry kurtz]

Citing it as a precedent only:

"Different parties — read China and Russia and many other countries in the world not present on the Security Council — are able to take the Security Council resolution in any of these or other ways. It was almost certainly drafted precisely to that ambiguous end. Strategic ambiguity, as I discuss in a certain forthcoming book, is often a bad idea for these reasons, no matter how beloved of diplomats. It indeed has an honorable, if occasional, place: the fiction of the two Chinas has long been a useful ambiguity, since the alternative might be a truly devastating conflict. The question is one of judgment as to whether ambiguity lessens or instead stores up greater trouble in the future."

http://opiniojuris.org/2011/03/22/strategic-ambiguity-and-libya/

Unless something goes horribly wrong, the Prez will be home in time for cocktails.

[unicorn4711]

I think your right that there is a good argument that Obama's use of force is not within the WPR. If he's outside of Sect. 2 c as would appear to be the case, then he has to rely on inherent powers as Commander-in-Chief. He has, however, fulfilled the notification requirement implying he believes the Act is relevant and that he is compliant. I'd like to read his reasoning.

My initial statements about the range of those powers given to the President as Commander-in-Chief being undetermined and up for debate are accurate. Biden's statements, mentioned by another poster, are pretty exhaustive.

Simply put, the President has some leeway in responding an immediate threat to US interests requiring US troops. As Biden so eloquently stated, one problem with the WPA is that it doesn't state all the possible scenarios in which we might want the President to be able to act. Some actions remain "inherent" to the role as Commander-in-Chief. Acting to prevent an imminent humanitarian crisis overseas arguably fits into that mold because a humanitarian crisis can be essential to the national interest and require swift Presidential action. Obama's line of reasoning has been that had the West not intervened, a slaughter in Libya would have ensued. Obama could make the case that, since he was in Brazil and Congressional members were who knows where, he didn't have time to gain Congressional authorization. Admittedly, consulting with France and Britain before had seems to counteract that line of reasoning. However, interaction between the US State Department and the foreign ministries of close allies are always ongoing and can arguably conclude more quickly than Congress. Still, though, the fact that Obama didn't even try is disturbing.

If Republicans really wanted to force the President's hand, they'd immediately convene to pass an act condemning the President and calling for the immediate withdrawal of all US forces from the area. If, however, Congress remains silent, it could be interpreted as tacit consent with the President's reasoning because Congress has the authority to make laws and often responds to unwanted executive actions by passing subsequent legislation. Even if failure to voice disagreement isn't seen as tacit consent of the President's view, it's far less convincing to wait until the campaign season kicks or the war goes sour to voice complaints.

[Donald Pay]

The worst thing for Republicans is they have to actually vote on something of substance that hasn't been focus-group tested to appeal to "the base." The "where's Waldo" Republicans, after all, depend on their Republican pollsters to tell them what position to take, and NPR and Planned Parenthood funding was priority Numero Uno. The pollsters have been busy, and the spin doctors are now formulating what will become the Republican response tomorrow or in a few days. Right now it's just a lot of huffing and puffing and jumping around a la KB.

[Jimi]

Democrats control the Executive Branch, the Senate, and the "Progressive" Ideology controls the majority of the non-elected state department and federal governmental agency positions, and here is Donald whining about Republicans? It sure would have nice if the Republicans even had a say in the bombing of Libya, wouldn't it have been?

It's Pathetic!

[larry kurtz]

Here, buttdart; watch this and weep: http://www.youtube.com/watch?v=R325K6alVlA

[Ken Blanchard]

U & Donald: Congressional Republicans have not, as a group, challenged the President's policy. They are insisting that Congress be consulted (it hasn't been) and that the President have a policy (he doesn't). Congress cannot make war. It cannot supply leadership when the President defaults. It might have to pull the rug out from under him if his incompetence threatens the security of the nation. Let's hope it doesn't come to that. It might.

[Mirza]

It's obvious that Josh St. Louis is okay with hoemraging party principles in order win elections. I think we all understand the concept of compromise, but Matthew is more of a statist progressive than anything else and this is Republican primary Matthew. Very few of us have seen the real Matthew Berry.I don't think you're being mean Josh, I think you've abandoned conservative princples in exchange for what the rest of us are fighting adamantly against. Quite honestly, I think you're a fraud to conservative principles. In fact, your blog itself is inappropriately titled. How about PurpleNoVa8? It's a bit more fitting, no? How about Matthew Berry for Congress?Anyway, your point is predictably inept. When Jim Moran has to throw millions into ads against Murray, it'll be because Patrick is doing his job as a viable candidate. In the unlikely event that Matthew secures the nomination, Moran will likely spend a few thousand dollars marketing the video of Matthew exclaiming, I am pro life. to the 8th District Democrat women a few hundred times in a row.Don't quit your day job buddy.

[Janko]

Hang on just a second Jason. Patrick has not been nasty to Matthew and Matthew pealrnolsy has not been nasty to Patrick, but Matthew has condoned his supporters to call Patrick a carpetbagger because he was sent overseas and around the country to serve his country then moved back here after his service. Your right, Matthew has not been nasty, but if you consider Patrick's supporters to be speaking for him, then we must allow Matthew's supporters to speak for him as well. Lets be fair. Pro-life I hope that you will ask Matthew how he would vote for federal funding for abortion Stupak was pro-life too, but he voted for it. You know how Murray will vote, but do you know how Matthew will?