Paul Campos / The Daily Beast & Bruce Ackerman / Foreign Policy – 2011-04-04 00:22:22
Obama’s Imperial War in Libya
Subverts the Constitution
Paul Campos / The Daily Beast
(April 3, 2011) — What if President Obama raised taxes without congressional approval? It sounds preposterous, yet US presidents now routinely wage war on their ownâ€”and in Libya, Obama isnâ€™t even pretending Gaddafi poses a threat to us.
Suppose President Obama announced that, in order to protect the nation while carrying out his constitutional duties as commander in chief, he was issuing an executive order restoring federal income tax rates to their Clinton-era levels. Suppose he justified this action by referring to the powers the Constitution supposedly vested in him to wage war on his own initiative. Suppose he argued that, since the Constitution grants him this power, it would be absurd to claim that it denied him the necessary concurrent power to raise revenue so that he might fulfill his constitutional responsibilities.
I suspect most lawyers and law professors, although perhaps not the indefatigable professor John Yoo, would consider such an argument preposterous on its face. After all, the Constitution specifically grants Congress the power to “lay and collect taxes.”
Only Congress has the constitutional authority to impose taxes, an authority it has exercised by enacting the Internal Revenue Code. The president’s role in the matter is limited to executing that law faithfully, proposing changes to it, and vetoing proposed changes of which he disapproves.
All this is American Government 101. Yet when it comes to waging war, American Government 101 has, since the middle of the 20th century, been replaced gradually by American Government, Special Roman Imperial Edition. Our latest splendid little war is the most striking example of this trend to date.
On Wednesday, Secretary of State Hillary Clinton deigned to inform Congress that, while it remained free to pass whatever resolutions it liked regarding the Libyan war, any such resolutions would be ignored by President Obama. Clinton also made clear that the administration had no intention of abiding by the provisions of the War Powers Resolution, the law Congress enacted, over President Nixon’s veto, in 1973, that confirms presidents have the power to respond to genuine military emergencies without first getting congressional authorization.
Consider what a complete inversion of the constitutional order Clinton’s remarks represent. The Constitution grants Congress the exclusive power to take America to war, every bit as unambiguously as it grants Congress the exclusive power to levy taxes.
Following in the footsteps of every president since Truman, Obama seems to be completing a reversal of the American constitutional system, one that now has reached the point at which presidents claim, in the words of Professor Yoo, that Congress lacks the power to “place any limits on the president’s determinations as to any [military] threat, the amount of military force to be used in response, or the method, timing, and nature of the response.”
Indeed, Obama’s actions in Libya go beyond the legal powers Yoo’s employer, George W. Bush, claimed to possess. As overblown as the Bush administration’s claims were about the threat the Taliban and Saddam Hussein posed to America, they were not as outrageous as a claim that Col. Muammar Gaddafi’s ragtag dictatorship represents a military threat to the United States.
And Obama has not — at least not yet — made any such claim. Instead, he has decided to go to war for what are presented as humanitarian, rather than defensive, reasons. (The most Orwellian feature of the destruction of our constitutional order has been the campaign to call war anything but war. Apparently for liberal interventionists such as Obama and Clinton, military adventures in foreign lands are not wars if one’s intentions are sufficiently pure: then they become humanitarian aid delivered via Cruise missiles.)
None of this is itself an argument against the war in Libya. Perhaps it’s desirable, or even morally imperative, for Western nations in general, and America in particular, to enter another civil war in the Middle East. But the framers of the Constitution had very good reasons for making it difficult for America to go to war. They knew that even wars that begin with the best of intentions often end up being driven by the worst ones.
They also knew that while war is almost never in the interest of a nation’s people, it is often in the interest of a nation’s rulers, who reap the political and economic benefits of war while bearing little or none of its costs. That’s why they designed a system of barriers to action — which is, after all, what the rule of law is supposed to be — before politicians could send others off to kill and be killed in the name of the noble national goal of the moment.
Barack and Hillary’s excellent adventure presents us with a particularly mordant irony. The endless blather from neoconservatives and liberal interventionists about how our wars will give birth to the rule of law in the Middle East ignores how those wars have led an increasingly imperial presidency to mock the most basic requirements of the rule of law in America.
Paul Campos is a professor of law at the University of Colorado at Boulder.
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Obamaâ€™s Unconstitutional War
Bruce Ackerman / Foreign Policy
(March 24, 2011) — In taking the country into a war with Libya, Barack Obama’s administration is breaking new ground in its construction of an imperial presidency — an executive who increasingly acts independently of Congress at home and abroad.
Obtaining a UN Security Council resolution has legitimated US bombing raids under international law. But the UN Charter is not a substitute for the US Constitution, which gives Congress, not the president, the power “to declare war.”
After the Vietnam War, Congress passed the War Powers Resolution, which granted the president the power to act unilaterally for 60 days in response to a “national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” The law gave the chief executive an additional 30 days to disengage if he failed to gain congressional assent during the interim.
But, again, these provisions have little to do with the constitutionality of the Libyan intervention, since Libya did not attack our “armed forces.” The president failed to mention this fundamental point in giving Congress notice of his decision on Monday, in compliance with another provision of the resolution. Without an armed “attack,” there is no compelling reason for the president to cut Congress out of a crucial decision on war and peace.
This is particularly striking since, in the Libyan case, the president had plenty of time to get congressional support. A broad coalition — from Senator John McCain to Senator John Kerry — could have been mobilized on behalf of a bipartisan resolution as the administration engaged in the necessary international diplomacy. But apparently Obama thought it more important to lobby the Arab League than the US Congress.
In cutting out Congress, Obama has overstepped even the dubious precedent set when President Bill Clinton bombed Kosovo in 1999. Then, the Justice Department’s Office of Legal Counsel asserted that Congress had given its consent by appropriating funds for the Kosovo campaign. It was a big stretch, given the actual facts — but Obama can’t even take advantage of this same desperate expedient, since Congress has appropriated no funds for the Libyan war.
The president is simply using money appropriated to the Pentagon for general purposes to conduct the current air campaign.
The War Powers Resolution doesn’t authorize a single day of Libyan bombing. But it does provide an escape hatch, stating that it is not “intended to alter the constitutional authority of the Congress or of the President.” So it’s open for Obama to assert that his power as commander in chief allows him to wage war without Congress, despite the Constitution’s insistence to the contrary.
Many modern presidents have made such claims, and Harry Truman acted upon this assertion in Korea. But it’s surprising to find Obama on the verge of ratifying such precedents. He was elected in reaction to the unilateralist assertions of John Yoo and other apologists for George W. Bush-era illegalities. Yet he is now moving onto ground that even Bush did not occupy. After a lot of talk about his inherent powers, Bush did get Congress to authorize his wars in Afghanistan and Iraq. Now, Obama is putting Bush-era talk into action in Libya — without congressional authorization.
The president’s insistence that his Libyan campaign is limited in its purposes and duration is no excuse. These are precisely the issues that he should have defined in collaboration with Congress. Now that he claims inherent power, why can’t he redefine US objectives on his own? No less important, what is to stop some future president from using Obama’s precedent to justify even more aggressively unilateral actions?
The buck stops on Capitol Hill. As always, presidential unilateralism puts Congress in a tough position. It cannot afford to cut off funds immediately and put the lives of Americans, and US allies, in danger. But it can pass a bill denying future funding after three months. This would prevent the president from expanding the mission unless he can gain express congressional consent.
The US Congress should also take more fundamental steps to bring the imperial presidency under control. In the aftermath of Watergate, Congress went beyond the War Powers Resolution to enact a series of framework statutes that tried to impose the rule of law on a runaway presidency. Many of these statutes have failed to work as planned, but they were the product of a serious investigation led by Senator Frank Church and Representative Otis Pike during the 1970s.
A similar inquest is imperative today. In many respects, Bush’s war on terrorism was a more sweeping breach of constitutional norms than anything Richard Nixon attempted in Watergate. Yet Congress has been silent, trusting Obama to clean house on his own.
The president has shown, by his actions, that this trust is not justified. If Congress fails to respond, we have moved one large step further down the path to a truly imperial presidency.
Bruce Ackerman, a professor of law and political science at Yale, is the author of The Decline and Fall of the American Republic.
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