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Friday, May 27, 2011

Lawless Government

Obama flouts the War Powers Resolution.

Everyone pays lip service to the rule of law. Indeed I’ve never heard of anyone rejecting it as undesirable. (It has been called impossible under prevailing circumstances but that is a different point.) So why is the principle so flagrantly violated with almost no public outrage?

Take President Obama’s intervention in the Libyan civil war. Even if we grant that he could legally enter that conflict by his own unilateral decision – a big if, which we’ll explore below – the War Powers Resolution of 1973 requires him after 60 days to cease operations or ask Congress for authorization to continue. One week ago today the clock ran out on the Libyan intervention, yet Obama has neither ceased operations nor asked for authorization.

He’s violated the law. (Never mind that Obama said that Operation Odyssey Dawn would take days not weeks.)

To their credit a few members of Congress are protesting. “The president is not a king, and he shouldn’t act like a king,” Republican Rep. Dan Burton said. Democratic Rep. Brad Sherman agreed: “It’s time to stop shredding the U.S. Constitution in a presumed effort to bring democracy and constitutional rule of law to Libya.”

Now there’s bipartisanship one can applaud.

Unilateral Authority

How one feels about the Libyan intervention should be irrelevant here. (I think it’s improper by any reasonable criterion.) What’s under challenge is the executive branch’s unilateral authority to take the country into war, putting Americans and others at risk, not to mention spending billions of dollars in borrowed money. To say the least, the founders were determined to prevent just this from happening. Thus the Constitution gives only the Congress the power to declare and appropriate money for war. But since 1942 no president has asked Congress for a declaration of war. (“Authorizations” that give blank checks to a president don’t count.) That’s why the War Powers Resolution was adopted. It was a half-hearted attempt to restore some measure of congressional authority over war-making. The problem is that no president has accepted it, and members of Congress generally have been too pusillanimous to stand up to a president. Considering the Supreme Court’s reluctance to enter this kind of dispute between the “political branches” (as if the Supreme Court were not political), the Court probably would have ducked any challenge anyway.

So presidents have repeatedly gotten away with lawlessness. Yet as Glenn Greenwald notes, that does not make new violations lawful.

Under the War Powers Resolution a president can commit troops to combat on his own say-so only in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Thus the Libyan intervention is illegal under the Resolution. The battle between Muammar al-Qaddafi and rebel forces clearly fails to satisfy that description of “national emergency.” Obama, then, had no obvious authority whatever to lead a NATO air campaign against the Libyan government. Saving Libyan civilians from danger (even if that were a realistic prospect) cannot justify U.S. intervention. (On the dubious threat of a civilian massacre see Steve Chapman’s “Obama’s War of Choice.”)

What does the administration say? “[T]he President had the constitutional authority to direct the use of force in Libya because he could reasonably determine that such use of force was in the national interest,” a Justice Department Office of Legal Counsel memorandum (pdf) states. “We also advised that prior congressional approval was not constitutionally required to use military force in the limited operations under consideration.”

In other words, if a president judges a military operation in the national interest, he may on his own commit forces. The absence of congressional authorization or even funding is of no import.

The only problem is that the War Powers Resolution says nothing like that.

Sixty-Day Rule

The past cannot be changed, so let’s move on to the next key part of the Resolution: the requirement that after 60 days a president must stop combat operations or get authorization from Congress. (A president can take 30 days more if troops would be endangered otherwise.) In 1980 the Office of Legal Counsel gave its constitutional blessing to this provision, and that apparently has not been reversed. Revealingly, according to the New York Times, “Administration officials offered no theory for why continuing the air war in Libya in the absence of Congressional authorization and beyond the deadline would be lawful.”

There you go. So it is written, so it shall be done. They don’t need no stinking theory. The closest we got to a justification came from press secretary Jay Carney, who said that the commentary about the Resolution “could fill this room, and none of it would be conclusive.” Even if that were true, shouldn’t the administration err on the side of dispersed rather than concentrated power?

The Times quoted Harvard Law Professor Jack Goldsmith, who ran the Office of Legal Counsel in 2003 and 2004, on the unprecedented nature of Obama’s action: “There may be facts of which we are unaware, but this appears to be the first time that any president has violated the War Powers Resolution’s requirement either to terminate the use of armed forces within 60 days after the initiation of hostilities or get Congress’s support.”

Mental Contortions

Some allies of the President have undertaken prodigious mental contortions in arguing that the Resolution doesn’t apply to Obama’s action. It’s been said that deadly drone attacks (which have killed noncombatants) and the U.S. supporting role for NATO don’t count as warfare. That’s laughable. Besides, the Times quoted Secretary of State Hillary Clinton saying just this week: “Even today, the United States continues to fly 25 percent of all sorties. We continue to provide the majority of intelligence, surveillance and reconnaissance assets.”

If it looks, sounds, and smells like war, it’s war.

Some may wonder why Obama didn’t ask Congress for authorization, since he could surely have gotten it. Greenwald knows why: “The Obama White House is simply choosing not to seek it because Obama officials want to bolster the unrestrained power of the imperial presidency entrenched by [the Bush administration].”

It would behoove Obama to heed the words of a once-future president who said:

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.


No more ignoring the law when it’s inconvenient. That is not who we are. . . . We will again set an example for the world that the law is not subject to the whims of stubborn rulers.

That was candidate Barack Obama. The fair-weather foes of arbitrary centralized power have much to answer for.

  • Sheldon Richman is the former editor of The Freeman and a contributor to The Concise Encyclopedia of Economics. He is the author of Separating School and State: How to Liberate America's Families and thousands of articles.