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Monday, March 21, 2011



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.


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?


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



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."


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


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.


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.


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.


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?

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