Congress’ reaction to President Obama’s decision to launch a military intervention in Libya has been supine even by Congress’ usual standards. Congress vigorously debated and refused to authorize President Clinton’s military intervention in Kosovo in 1999 (Clinton intervened anyway). Congress debated and authorized the attacks on Afghanistan in 2001 and Iraq in 2003. Yet Congress has been mostly silent about the intervention in Libya. Why?
President Obama is following a long line of precedents in which the executive lanched a foreign war without congressional authorization. The president disavowed these precedents during his campaign; he may or may not attempt to distinguish his campaign statement by invoking the UN security council resolution authorizing the attack, as Truman did for Korea. But this legal wrangling is all superstructure. Congress is disabled in numerous ways from making practical contributions to a war effort. It cannot prevent the president from starting a war, and it is nearly impossible to halt an ongoing war. Wars, then, simply become an opportunity for members of Congress to stake their reputations as hawks or doves for the sake of future elections.
The Libya intervention provides an instructive example of the disabilities hampering Congress. Events in Libya unfolded with extraordinary rapidity, while the proper American stance depended on numerous constantly changing factors—the security situation in Libya, the attitudes of neighboring states and their populations, and the positions of foreign powers such as the UK, France, China, and Russia. A major source of complexity is that these various attitudes and positions depended in part on what other people thought the United States would do. The rebels might hold out if they believed that the United States would intervene, and by holding out possibly prevail without American intervention. The UK and France might sound the tocsins of war only as long as they believed that the United States would support them if they obtained the acquiescence of other countries, which in turn would care about American attitudes as well. As these various actors calculated their moves, they sent out feelers to the U.S. executive and received responses—promises, hints, suggestions. Eventually, international opinion coalesced and military intervention followed.
Congress could not play a role. Lacking a leader who could commit it to a course of action, Congress could not make promises. Lacking a single mouthpiece, it could not be consulted. Foreign countries naturally turned to the president. Nor is it realistic for Congress to formally ratify the president’s decision if formal ratification involves the possibility of rejection. Then the next time that the United States is involved in a foreign policy crisis, other countries won’t know who to speak to, and who to believe.
We live in a system of executive primacy, as Adrian Vermeule and I have argued in our new book, The Executive Unbound: After the Madisonian Republic. It is a consequence of natural institutional developments and necessities. The contrary view, which was written into the U.S. Constitution, could survive only as long as the United States was protected by two oceans from foreign threats and could focus on territorial expansion within a continent populated only by Indians, who were never a major threat—and even then it was honored more in the breach than in the observance. Those who are skeptical about the Libya intervention should address their policy arguments to the executive, and stop complaining that Congress has not authorized the war. Here is Jack Goldsmith arguing that Obama will invoke the UN Security Council resolution as his legal justification (why this is necessary after Clinton’s Kosovo intervention, which had no such resolution, is not explained); here is Andrew Sullivan arguing that Congress should do something, anything (“A congressional vote is also important to rein in the imperial presidency that Obama has now taken to a greater height then even Bush.”); and here is Ilya Somin’s post on the topic yesterday describing the protests of “several” (nine!) members of Congress.
Mike says:
I believe the counter-argument is that the US military should *not* exist to be an imperialistic force in the world, even a benevolent one. These sorts of quick decisions are only necessary when you consider sovereign states on the other side of the world to be part of your own territory, to be policed as necessary.
Of course, any such sentiment is yelling into the wind at this point.
March 21, 2011, 8:27 amRodger Lodger says:
Could somebody explain under what theory U.N. authorization arguably trumps any hypothetical U.S. constitutional requirement that Congress declare ‘war’, if “war” this be? Can a president act lawfully inviolating American law (the Constitution) because authorized to act by the U.N.? Thank you very much — this is a theoretical question; I agree Congress is as useful here as feminine hygience for a department store dummy.
March 21, 2011, 8:33 amPubliusFL says:
Darn! Something happened to those oceans?
March 21, 2011, 8:35 amGulf Coast Bandit says:
This view is FRAUD.
March 21, 2011, 8:44 amWhy Obama didn’t ask Congress before bombing Libya says:
[...] blog in the country, guest-blogger Eric Posner writes about why President Obama didn’t seek Congressional approval for military action before committing the U.S. to an air war over Libya. President Obama is following a long line of [...]
March 21, 2011, 8:48 amBarnacle Bill says:
I’ll take a stab at it, although it isn’t what I personally subscribe to. The idea is that since the Constitution makes treaties “the law of the land”, and the UN Charter is a treaty, that the US by joining the UN surrendered some measure of our sovereignty to the UN. Again, I don’t agree with that, but it’s my understanding of the argument.
March 21, 2011, 8:49 amMario Rizzo says:
Clearly away technicalities, is Posner saying that simply because a certain kind of foreign policy (I call it “interventionist”) requires an “unbound” executive that the Constitution permits it? Could it not be that the Constitution functions — or should function — as an obstacle to that kind of foreign policy?
March 21, 2011, 8:50 amPersonFromPorlock says:
That seems a bit facile: Congress can impeach and remove a President for usurping its war-making powers; and halting an ongoing war is simple (Congress did it in Vietnam), although halting one without awkward consequences may be hard.
Doing these things once would be sufficient, and then someone could write a book about The Executive Enchained: All it takes is a Congress with some sense of its own responsibilities….
Oh, never mind.
March 21, 2011, 8:59 amEli Rabett says:
Who says Congress wanted to play a role? They wanted the deniability and the tone troll platform
March 21, 2011, 9:06 amJoe says:
Congress could not play a role. Lacking a leader who could commit it to a course of action, Congress could not make promises.
Congress could have played a role if it wanted to but in recent years delegated the role to the President. Cases cited where it actually passed some authorization were those where they were following the President’s lead. This is not a necessity.
Congress has the power of the purse, of appointments and to ratify treaties. The President needs it. If Congress wanted to do so, they could require the President to involve them more and get their approval.
Here, they could have came together and gave the President the authority to intervene with conditions. When time is an issue, Congress could delegate its decisions to a small group, headed by leadership and key players (such as the head of the Senate Armed Services Committee) and an immediate vote would have to be made on the matter after brief debate.
Congress could have a leader on this — the Majority Leader of each House. Of course, in recent years, foreign policy is seen as an “executive” function, one with a “Republican” vibe. Even when Democrats are in power, they are to be “conservative” on this question. Thus, a key player was the same in the Bush and Obama Administrations.
This is not a necessity. But, if the people think it is, they will keep on voting in people who do things this way.
March 21, 2011, 9:07 amSerious says:
A chance to “stake their reputations” is one way of putting it. But what upside is there for them? They’ll have their speeches quoted against them when they flip-flop, bug out, go wobbly or, after an election, instantly switch sides, when all prior positions are rendered inoperative. “The international community cannot simply watch from the sidelines as this quest for democracy is met with violence,” John Kerry says now. Does he not know that he will change his mind? He shouldn’t have said anything.
March 21, 2011, 9:17 amFC says:
So, are we agreed that Obama is the Decider?
March 21, 2011, 9:19 amMH says:
Is Posner’s use of the term “superstructure” correct?
March 21, 2011, 9:21 amBart DePalma says:
I would suggest that Obama is not so much exercising “executive supremacy” as he is implementing the left’s developing doctrine of UN supremacy. Obama did indeed seek permission to go to war – from the UN.
March 21, 2011, 9:22 amLazy Federal Employee Posting from Work says:
Seeing “Eric Posner” at the top of VC this morning was such a pleasant surprise. We’ve missed you.
March 21, 2011, 9:24 amrumpelstiltskin says:
I didn’t realize you could have usurpers outside of a monarchy. That’s pretty cool. Can we retroactively give names to our presidents, like “Grant the Lazy” and “Lyndon the Just” or something? That’d be pretty great actually.
March 21, 2011, 9:31 amAnderson says:
since the Constitution makes treaties “the law of the land”, and the UN Charter is a treaty, that the US by joining the UN surrendered some measure of our sovereignty to the UN
One of the problems with this theory is that a treaty is ratified by only the Senate, whereas war must be declared by both houses. So if the Senate accedes to a UN treaty that allows the US to go to war at the UN’s behest, that shuts out the House.
In practice, the House can’t be excluded, because it can refuse to pay for the war. But has that ever happened?
March 21, 2011, 9:41 amPersonFromPorlock says:
Let me try again to make a point I last aired during the Bush2 administration: that President and Commander in Chief are different offices (the phrasing “The President shall be Commander in Chief” distinguishes them), held by the same person. That’s the only way to resolve the conflict between the independence of the Executive branch and the power of the Congress to regulate the military.
Thus, when the person-who-is-President puts on the Brass Hat, he becomes ‘merely’ the person-who-is-CinC, and subordinate to Congress via its Article One powers. Once this point is grasped, any argument that the President can make war independent of Congressional control goes away entirely.
March 21, 2011, 9:44 am4C says:
“Congress could not play a role.”… “Lacking a single mouthpiece, it could not be consulted”
Nonsense. Congress has leadership structure, it has debate procedures both public and in camera ( for security issues etc ), and by law it MUST be consulted on many issues. Perhaps this was one, perhaps not, but to say that it ‘could not’ be consulted is incorrect. In fact, it WAS consulted, via private briefings of leadership of both parties, in this case. Arguments both pro and con were discussed with the Executive, IOW consultation occurred. Then the Executive decided.
“Obama will invoke the UN Security Council resolution as his legal justification ” doubtless he will. And this is very scary – it A ) substitutes the UN for Congress, and B ) places America in the role of ‘the military arm of the UN, to be used when and where the UN sees fit.
“Then the next time that the United States is involved in a foreign policy crisis, other countries won’t know who to speak to, and who to believe”
They will continue to speak to the President, with the understanding that he is not, under our system, a dictator of umlimited powers, and that his hands are in fact bound by our Constitution and our system of government. Perhaps the Princes of Saudi Arabia, or the Kings of Jordan or Bahrain, or the dictators of Libya or others don’t understand this, or don’t like the idea of democracy and limits on the executive. That is their problem not ours.
March 21, 2011, 9:46 amSk says:
Other commenters have mentioned or danced around it, but I think your view depends upon our particular international outlook rather than any systemic condition. In other words, only because the US wants the ability (both material and moral) to react quickly to international events do we have a system in which the president decides to start wars without Congressional input. We have a fleet in the Mediterranean: we see news stories of rebels in North Africa being attacked: we want to use that fleet quickly enough to influence events as they occur. All of these require a decisionmaking process faster than the Constitutional process (which includes Congressional oversight) allows.
The counterfactual would be very easy to imagine: we don’t have a fleet in the Mediterranean (all the UN proclamations in the world wouldn’t matter a whit if we only had two fleets – in Norfolk and San Diego): we don’t feel that events in the shores of North Africa require our input within days/weeks: we may choose to influence events, but over the long term (which may include rescuing defeated rebels rather than supporting losing, but still fighting, rebels): we make the decision to go to war through the normal Constitutional process (which included Congressional oversight).
This counterfactual is not outrageous: China and Russia are not responding to the events in Libya within weeks, and they are regional, if not world, powers. Great Britain engaged in the war in the Falklands after an extended period, which left plenty of time for debate: we could imagine unrest in Finland, or North Korea (i.e. nations that are theoretically under other nation’s influence, and thus less likely to allow an immediate response) that would allow for a constitutional decisionmaking process in our own country.
So, I disagree that the situation is caused by ‘institutional developments and necessities.’ I see it as being caused by specific policy choices on the part of the country that could easily be different.
Sk
March 21, 2011, 9:51 amScott says:
Since neither of the open threads on this issue seem to have mentioned it, would someone care to comment on USC Title 22, Chapter 7, Subchapter XVI, section 287d:
“The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That, except as authorized in section 287d–1 of this title, nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.”
March 21, 2011, 9:55 amORID says:
What if Congress were to disapprove the use of funds for UN intervention in Libya? What if Congress funded an Army, Navy, Air Force, and then segregated funds for a “Article II Military” which had 5% of the force structure of each of the branches. Don’t you think Congress in doing so could limit how much military force is at the President’s whim? It seems that it could fall under this provision of Article I: To make Rules for the Government and Regulation of the land and naval Forces..
Clearly Obama did not invoke this action for the provision of common defense. We are going to war to protect the Libyan forces from their own forces.
I suppose those upset in Congress can work to foil the President’s domestic agenda… but, they also happen to agree with his agenda. Since Kucinich thinks impeachment is in order I imagine he’s going to flip and start voting with the GOP now…
March 21, 2011, 9:56 amJay S. says:
Professor Posner’s argument strikes me as kind of peculiar — isn’t he basically saying “yeah, under that silly old Constitution, Congress has to authorize this action, but we stopped worrying about that a lot time ago, because it’s just not practical anymore”? I suppose that kind of argument is really what underlies most of what now passes for “constitutional law,” and maybe I should just appreciate the honesty, but still, it doesn’t strike me as particularly legal.
On a different note, however, doesn’t the War Powers Resolution make this an open-and-shut case, at least until the 60/90 day period has elapsed? Maybe I’m just missing something obvious, but it was my understanding that the War Powers Resolution basically authorizes unilateral executive military action, at least for that initial time frame. But for some reason most people, even legal commentators, don’t seem to be talking about that law — I haven’t seen a single post about it from any of the conspirators. Am I just missing something?
March 21, 2011, 9:56 amMark Buehner says:
It happened with Vietnam at the end.
More importantly, a treaty cannot abrogate The Constitution. It may trump state or federal laws, but not the constitution or the amendments. A treaty can no more divest the power to declare war from congress than remove the freedom of the press.
March 21, 2011, 9:59 amerp says:
This is merely an “intervention,” not imperialistic agression, blood for oil, as were previous excursions of this nature.
March 21, 2011, 10:05 amBob from Ohio says:
There is absolutely nothing in the Constitution that supports your hobbyhorse. Is there any case law that says that there is a separate office called CinC?
Section 2 of Article II has a laundry list of powers of the President just like Section 8 of Article I has a laundry list of Congressonal powers.
Power over the military is just a power of the President.
March 21, 2011, 10:10 amMark Buehner says:
And we know this is true because we are told so.
March 21, 2011, 10:13 amKatahdin says:
Must getting the approval of congress always be a slow process? Congress managed to declare war on Japan the day after Pearl Harbor, after all. It’s not clear to me that the situation in Libya proceeded faster or posed more of a threat than that.
A cold war bolt out of the blue nuclear exchange is an obvious example of a time when congress couldn’t be consulted, but Libya seems much less compelling.
March 21, 2011, 10:13 amORID says:
I believe there was some Supreme Court case which basically said, “Not all uses of our Army, Navy, and Air Force are “war” “.
Looking at Campbell vs. Clinton (lawsuit over Kosovo action), where one of the concurring justices said “there’s no test for what constitutes ‘war’”. [DC Circuit Appeals Court, did not make Supreme Court]
Even assuming a court could determine what “war” is, it is important to remember that the Constitution grants Congress the power to declare war, which is not necessarily the same as the power to determine whether U.S. forces will fight in a war.…Therefore, I assume, arguendo, that appellants are correct and only Congress has authority to initiate “war.” If the President may direct U.S. forces in response to third-party initiated war, then the question any plaintiff who challenges the constitutionality of a war must answer is, who started it? The question of who is responsible for a conflict is, as history reveals, rather difficult to answer, and we lack judicial standards for resolving it.
March 21, 2011, 10:21 amStephen Lathrop says:
Is that a bug, or a feature? Why would it be helpful for other countries to believe incorrectly that they understand U.S. policy after consulting only one of the branches of government? That really must presuppose an end of congressional power in war-making, or it makes no sense.
March 21, 2011, 10:30 amtamerlane says:
There’s a big difference between declaring war and engaging in military action. The phrase in Article II of the Constitution about declarations of war refers to a technical term in the international law of the time that was well-understood by the writers of the Constitution but has been pretty well ignored by all commentators so far. There are literally hundreds of instances where US presidents have ordered the military into action without any enabling authority from Congress. For instance, the Barbary pirates engaged in the equivalent of military acts aginst the US but didn’t declare war against us until we refused tribute and they inulged themselves in certain symbolic acts involving our embassy.
March 21, 2011, 10:32 amtamerlane says:
Correction:
There’s a big difference between declaring war and engaging in military action. The phrase in Article II of the Constitution about declarations of war refers to a technical term in the international law of the time that was well-understood by the writers of the Constitution but has been pretty well ignored by all commentators so far. For instance, the Barbary pirates engaged in the equivalent of military acts aginst the US but didn’t declare war against us until we refused tribute and they then inulged themselves in certain symbolic acts involving our embassy.
There are literally hundreds of instances where US presidents have ordered the military into action without any enabling authority from Congress.
March 21, 2011, 10:38 amJoe says:
declaring war and engaging in military action
The latter are “acts of war” so how far does that take you? If the President can unilaterally commit us to acts of war, which can leads to war … what sort of restraint does the provision have? If you blockade a country, for instance, you don’t have “declare war” to be in trouble. It isn’t THAT technical.
“Military action” is usefully vague. So, any number of mundane actions are tossed in there to justify major military action of this nature.
the equivalent of military acts against the US
Jefferson went out of his way to tie the authorized military action to acts of aggression against our forces, not some generalized threat to international order or their own people; Madison wanted clear authority too, but — precedents for dropping the ball — Congress was arguably vague, passing the buck.
If modern times warrant changes in this context, Art. V. seems appropriate. Sometimes, yeah, that is the right answer.
March 21, 2011, 10:46 amSarcastro says:
And our Republic has barely survived! Just cause the founders did it doesn’t mean the founders thought it was Constitutional!
War Powers Resolution and tacit Congressional approval bedamned, Ima suddenly be formalist about this one thing cause it makes Obama look bad.
Also I think this means the UN has usurped Obama’s usurpation. Ominous!
March 21, 2011, 10:47 amMark Buehner says:
Congress holds the purse strings, they can cut off military action at their pleasure. Everything else is just posturing, so whats the difference?
March 21, 2011, 10:47 amChris says:
“The contrary view, which was written into the U.S. Constitution, could survive only as long as the United States was protected by two oceans from foreign threats…”
New Orleans? Florida? Canada?
March 21, 2011, 10:59 amgooners says:
I wonder if they can for this type of action. How is this being paid for? If there is no special funding for a military action, then Congress would have to mess with the regular defense budget?
Every time another “military action” comes up this is all debated over again. There isn’t any precedent for Congressional restraint of the president’s war powers. All through our history there is example after example of presidents either acting without Congressional authority, or provoking other countries until Congress has no choice but to act.
March 21, 2011, 11:02 amAnderson says:
More importantly, a treaty cannot abrogate The Constitution.
True, but Congress isn’t being divested of its DOW power; it authorizes certain uses of force in addition to that power.
… Mind, I think Obama should’ve gone to Congress first, and I disapprove of the executive’s plunging us into conflicts where our national defense isn’t an issue.
Unfortunately, in one of the rare instances of John Yoo’s being right about anything, the presidency has accrued excessive warmaking powers to itself, and our system of checks and balances isn’t working to correct that.
March 21, 2011, 11:02 amDebrah says:
Hillary Clinton-Barack Obama tension in the lead up to Libya from Vanity Fair further reveals who wears the real pants (or pantsuits) in the White House.
March 21, 2011, 11:04 amStephen Lathrop says:
Just reading the Supremacy clause, it seems to me that a treaty could do that, at least in part. There must be some law on the subject that I don’t know anything about. Expert input?
March 21, 2011, 11:10 amgooners says:
I hope you don’t get all your political news from fashion magazine blogs.
March 21, 2011, 11:11 amOrenWithAnE says:
As usual, where you stand depends on where you sit.
[ FWIW, I approve of the Libyan intervention as a matter of policy and I think Congress should retroactively authorize it as a chance to put strong constraints on it. ]
March 21, 2011, 11:29 amMike says:
So it isn’t imperialist to decide who should be the lawful leaders of a sovereign country? All moral justifications aside, this is a strong showing of authority, that Gaddafi and other leaders like his keep their positions at our pleasure.
March 21, 2011, 11:31 amJaimeInTexas says:
Mexico?
March 21, 2011, 11:40 amReaderY says:
If Congress wanted the President to use U.S. military forces at discretion to be the world’s policeman and intervene in rapidly-changing situations in small countries without time to consult Congress, then Congress could give the President general authority to do so without having to be consulted each time.
The decision whether to do so, and whether to revoke it, remains with Congress.
I agree that an Empire needs a strongman who can make all the decisions. But do we need to be an Empire?
The Republic lives. It is our sworn duty to defend it. I seem to recall another Republic where people said the idea of a republic was outdated and it was time to move on with the times. Our country was founded on the notion that that isn’t so and it’s not an accedent that that once-blooming Italian republic becae a tyrrany befroe it was ultiately destroyed, bringing in a thousand years of barbarianism. Our children don’t need that.
Even if we need to be an Empire, we don’t need the President to become an Emporer. It remains for Congress to decide how much of an Empire we need to be. Congress can set standards for when the President can use military force and can loosen and tighten them over time.
March 21, 2011, 11:48 amRagebot says:
You really need to get out more. I am no fan of Hill; but for a couple of weeks plenty of MSM stories confirm what Debrah implied with her link. Hill and Rice are widely viewed as getting the credit/blame while Obama just went along for the ride.
Just because a source is not a typical one does not mean it is wrong; and in this case it seems to me when reporting of the same story is this widespread it only strengthens Debrah’s point.
March 21, 2011, 11:51 amOrenWithAnE says:
If the Libyan intervention is imperialist then I’m all for imperialism (at least right now).
Labels aren’t helpful, judgment in individual cases are.
March 21, 2011, 11:55 amRagebot says:
Not to say there are not “instances” but suppressing the Barbary pirates may not be one of them.
I am certainly no expert on this so hopefully there is someone who has studied both “Admiralty Law” and the “Law of the Sea” (there is a distinction) who can explain to us the status of pirates and what ever law covers them. I would sorta think they are under “Law of the Sea” because of its more international nature; but I am getting way above my pay grade by going that far.
Any experts who can comment on this?
March 21, 2011, 11:59 amDon Miller says:
the argument that the UN authorized the President to act in Libya is similar to the Clinton/Kosovo, it was just a different treaty organization.
UN stalled around and did nothing. The NATO alliance is the organization who took action in Kosovo.
The argument is: As a leading member of NATO, we were obligated by our treaty to support NATO militarily when asked. NATO asked, we responded.
The argument is moot though. Congress passed the War Powers Act in 1973. It authorizes the President to put out troops into harms way and then come to Congress for further authorization or a declaration of war. He has to notify Congress within 48 hours, which he has, and then he has 60 days to withdraw the troops or get Congressional Authorization.
While he is supposed to invoke it if the US is under attack or “serious threat”, Presidents have made liberal use the War Powers Act 60 days to seek authorization window many times since then.
There is doubt about it’s Constitutionality, but until Congress or a President brings it to the Federal Courts attention officially, it is the law of the land.
Congress could impeach him because we weren’t under “serious threat”. But otherwise, I assume the Obama administration has complied with the terms of the War Powers Act.
March 21, 2011, 11:59 amgooners says:
Yeah well. Hillary Clinton’s hawkish side is well known, so maybe it’s true. Or maybe it is normal for a president to consult with his Secretary of State and UN diplomat on issues like this. I’m just getting a kick out of the shape these attacks on Obama are taking.
March 21, 2011, 12:00 pmsardonic_sob says:
Not all military action, even on the territory of another sovereign, is an act of war. For instance, in the Barbary pirate matter, or for a more recent example the Pancho Villa affair, it was recognized by classical international law (not that we hadn’t tossed that by old Pancho’s time) that if a sovereign could not prevent the acts of bandits and brigands operating from its territory, that another sovereign could send reasonable punitive forces into that territory to deal with them. In fact, the first sovereign was more or less bound to allow it, since offering them safe harbor under the guise of protecting territorial integrity made their actions acts of war attributable to that power.
Dropping bombs on and shooting down the planes of the regular armed forces of a foreign country on its territory don’t fit into this concept AT ALL, I hasten to add.
March 21, 2011, 12:01 pmReaderY says:
One is reminded of the Lord of the Rings dialog on “natural institutional developments and necessities”:
Saruman: It is time for us to choose. A new age is upon us, a new power is rising. Nothing that Elves or Men or Wizards can do will avail against it. Its enemies are utterly doomed, but its friends…
Saruman: Against the power of Mordor there can be no victory.
Saruman: We must join with Him, Gandalf. We must join with Sauron. It would be wise, my friend.
Gandalf: Tell me, “friend”, when did Saruman the Wise abandon reason for madness?
March 21, 2011, 12:03 pmRagebot says:
My point was not to the status of the intervention; rather to who gets credit/blame for it. I am not convinced Obama intervened; rather that he was more of a bystander.
March 21, 2011, 12:06 pmRagebot says:
I am still waiting for guidance on the distinction between dealing with bad guys on land as opposed to water. I know the Barbary pirates did some stuff on land; but the basic thrust of our conflict with them was they were pirates on water, not thugs on land.
Not disputing your main point at all that a no fly zone does not fit into this concept.
March 21, 2011, 12:10 pmMark Buehner says:
Reid v. Covert, Justice Black: “There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.”
Philosophically speaking, Jefferson said it succinctly: “If the treaty power is unlimited, then we don’t have a Constitution. Surely the President and the Senate cannot do by treaty what the whole government is interdicted from doing in any way.”
March 21, 2011, 12:15 pmMark Buehner says:
I think if you really wanted to you could make the argument that the UN has declared the government of Libya has abandoned some of its sovereignty by its acts against its people, and since wars are declared against states this isn’t technically a war as Libya isn’t technically a state (at least as currently headed and while in violation of the UN mandates).
Ultimately silly and open ended, but there you go.
March 21, 2011, 12:28 pmNunzio says:
Obama’s tactics here are interesting. He at least could have asked for emergency authorization from Congress do engage in attacks on what is, for now, the Libyan government. But if they said no, or sat still, then he would be in the predicament that Bill Clinton was back in 1999. That’s probably the worst place to be. Also, if Congress authorized this action and things turned out bad, then we’d get the Congress saying Obama lied to us, if we had known [insert here] we would never have authorized this.
I don’t agree with the regime-change intervention here, and also think Congress should get involved, even after the fact to approve or disapprove, but Obama is up for re-election next year, so at least the voters will have some say then. Clinton was a lame-duck when he committed the U.S. to bombing in Kosovo.
March 21, 2011, 12:31 pmDon Miller says:
I will take a shot at this, I was in the US Navy, and we talked about this occasionally.
Why did the Constitution treat Navies and Armies differently? In the 19th Century (and today), ships were complicated pieces of equipment that required long lead times to acquire, trained crews to operate and maintain, and decay rapidly in storage. Navies had a peacetime purpose of protecting merchant ships from criminals as well as ‘encouraging’ other countries to respect our right to trade peacefully. Countries without strong Navies had difficulty in maintaining trade. Their ships would disappear or have difficulty with foreign governments that countries with the ability to project their power, through Navies, didn’t have.
Even today, Navy ships are more complicated, more expensive, need more maintenance, require a higher level of training. You need a strong Navy the day a war starts. If you don’t have one in place already, it is too late.
In the 19th century however, Armies were different. They didn’t take very long to train. Their equipment could store well. Black Powder cannons and rifles can be warehoused very easily. It took a small cadre of trained leaders to field a large army. For much of the early life of our country, we relied on a small Federal Army, supplemented by State Militias who would provide their own officers and NCO’s.
In contrast though, modern armies (and air forces) are extremely technical and complicated. Their aircraft, missiles, artillery, tanks etc require ongoing training and maintenance to be efficient. They have tremendous lead times. We can’t warehouse them and wait for State militias to operate them. The militias would have to have access to them for training to be proficient when called upon.
A modern army is just as technically complicated to operate as a Navy is. We have a Constitution that didn’t for see that however.
March 21, 2011, 12:35 pmOrenWithAnE says:
Political question.
No President has ever acknowledged the constitutionality of the WPA. I do not think Obama will be the first.
March 21, 2011, 12:36 pmsardonic_sob says:
Assuming the pirates are operating in international waters (which used to be a lot closer to shore) the distinction is easy: once they operate in stateless territory, any sovereign may act against them, including pursuing them back to their land bases of operation.
This isn’t as big a difference as you might think, as the only thing that changes is now ANY sovereign may act against them, whereas only the sovereign subject to the depredations of the brigands operating exclusively on land can enter the other sovereign’s territory, not just any old random sovereign. Brigands, by and large, were not “hostis humani generis,” but maritime pirates were, and attempting to shelter them in any way from any legitimate power seeking to deal with them was an inherently hostile act.
Had, say, England wanted to deal with the Barbary pirates, they would have been lawfully within their rights to do so. However, they would not have been entitled to enter Mexico in pursuit of Villa’s brigands who had done them no injury.
March 21, 2011, 12:38 pmMark Buehner says:
The more I think about this, the one thing that disturbs me is that it seems as though it may have never even occurred to Obama that this question might come up. For a former senator, constitutional scholar, and Bush foreign policy critic, you would expect his administration to at least not be surprised that Congress would object to being shut out. Somewhere out there is the precursor of a really interesting book on the thought processes of this administration. If it didn’t even occur to Obama to go to Congress (IF), that says something pretty important about his attitude as president.
March 21, 2011, 12:44 pmyankee says:
Who says “Congress” has objected to being shut out? Some random members of Congress have objected, but neither House has taken any action or even come close to taking action.
The Constitution nominally requires Congressional approval for wars, but in reality the President can start wars unilaterally and there’s nothing Congress can do about it. Even if Congress would never have agreed to initiate hostilities, the obstacles to defunding troops already committed are all but insurmountable.
March 21, 2011, 1:00 pmPersonFromPorlock says:
But since the power to regulate the military is already delegated to Congress, what power is left over for the President to exercise as CinC? If the CinC’s powers are subordinate to Congress’s, and the President’s powers are not, then ‘CinC’ must be distinguishable from ‘President’.
March 21, 2011, 1:12 pmBlue says:
Yes, this is what troubles me the most about the situation.
March 21, 2011, 1:24 pmwfjag says:
Although bandied about as precedent for what Pres. Obama is doing, the Barbary pirates example does not support it. It is true that Jefferson dispatched the Naval expedition before receiving Congressional authorization. However, Jefferson secured that authorization before the attack. Arguably, had he not secured the authorization another ship could have been dispatched with a message calling off the mission. Here, Pres. Obama called a few members of Congress on the phone before hopping on Air Force One for Rio. The White House has taken the position that no further consultation, and no Congressional authorization, is needed. This is completely different from ordering a military mission but obtaining Congressional authorization before it is executed.
Also, what “no fly zone”? Is that the mission?
That is what SEC STATE told the Arab League that the mission would be, in order to secure its support.
Establishing a “no fly zone” involves conducting SEAD (Suppression of Enemny Air Defenses) operations — bombing air fields, radars, planes, logistical/repair facilities, and SAM launchers, and then Combat Air Patrol missions to ensure that no additional SEAD is needed and to keep the enemy air forces are kept grounded. However, the operations have gone well beyond that. That is why at least some Arab League members are backing off on their support, and may repudiate it — essentially saying that they were lied to by the US.
The UNSCR calls for protecting civilians. In addition to SEAD, French and US aircraft have attacked Libyan ground forces.
Pres. Obama has also called for removal of Gadaffi. It is not clear if that means complete regime change (Mummar’s sons and close supporters, too, or only Mummar himself need to), or if a divided Libya is satisfactory, or if it is US policy that the rebels from eastern Libya are to be supported until they control the entire country. The UK has fired 2 cruise missiles that hit an office complex within Gadaffi’s complex in Tripoli. This appears at least consistent with a mission of killing him, or others of his top personnel. There is no direct protection of civilians (on the other side of Libya) mission involved.
Pres. Obams’s statements along these lines, in addition to being so vague to lead to a classic mission creep situation, fail to provide an explanation of why the US should support the rebels. We have no idea who the leaders are, and, beyond overthrow of Gadaffi’s government, their objectives. There is reason for concern. Eastern Libya has been prime recruiting grounds for Al Qaeda and other Jihidist organizations, and so the rebels idea of “democracy” may have more in common with an Islamist Republic along Iranian lines than anything people in the US would consider a democracy. Accordingly, we may be setting up a situation similar to Iran in 1979.
However, without a public presentation to Congress, which explains the administration’s intent, goals and the mission of the military to the American public, there is no way to determine the mission or its scope and limitations, or for Congress to set limits on the use of military force.
IMO this highlights the problem with Congress’ non-feasance in discharging its Constitutional duties as to authorizing military action. Its non-feasance creates a power vacuum. The Executive has moved to fill that. However, that does not change the Constitutional standards. The Executive is usurping Congress’ powers (and has been for a long time), but that does not establish valid precedent. [To use an extreme example, it doesn't matter how many times I rob you a gunpoint and evade going to jail. That still does not establish a valid legal precedent that I can rob you at gunpoint].
Although I believe that Pres. Obama is acting in an extra-constitutional manner, and is treating Congress with contempt, it is a contempt that Congress has permitted to occur in the past without asserting and enforcing its Constitutional powers. If Congress has the collective moral fortitude to assert its powers it can end its being treated as a doormat in the manner that this (and past and future) Presidents have done with respect to use of the military. If not, then members of Congress should stop complaining. And, certainly they should stop the ridiculous discussion of impeachment. There is no high crime or misdemeanor involved.
March 21, 2011, 1:31 pmOwen H. says:
Possible even more laughable and delusional than the birther whinging.
March 21, 2011, 1:32 pmJoe says:
sardonic_sob, yes, not all military actions would be “acts of war,” as you say, so I summarized too broadly, but that only underlines my distaste for the citation of all the military excursions (over 200 or whatever), since there are so many different varieties.
Thus, e.g., some historical “reprisal” might have been justified, which doesn’t mean any use of military force — including one like this — would be justified.
March 21, 2011, 1:33 pmJoe says:
“treating Congress with contempt”
Congress has for years accepted this inferior role and Obama is following precedent on that front. So, I find ‘contempt’ a questionable usage here.
But, wfjag’s overall discussion is appreciated.
March 21, 2011, 1:36 pmgooners says:
The obvious comparison is the Iraq no-fly zone, which hasn’t been mentioned yet. I can’t find a reference to congressional authorization there. It was also a really shitty deal for the insurgents who thought they were getting western support.
There was also no congressional authorization for Operation Desert Shield, and by the time that was in place there was really no choice for Congress to make when it came to Desert Storm. As long as the president can commit the military right up to the point of no return Congress doesn’t really have much war power.
March 21, 2011, 1:40 pmSarcastro says:
Yep, who cares about the extent of executive power, just so long as it doesn’t agree with what the UN wants!
March 21, 2011, 1:43 pmMark Buehner says:
Oh? The question is certainly being asked, and every day that goes by Congress will be initiating more pushback. Its not a question of whether Congress starts sticking sticks in Obama’s spokes day 1… but what about day 30, or 60, or 100? The blowback right now is a question of defining the strategy and if the endstate and strategy remains ill defined, Congress is going to make waves more and more.
Furthermore, Congress can create a lot of problems for the president short of defunding. If Congress is asking tough questions and criticizing the president (going forward), its going to make for tough news cycles, and Obama may quickly lose the support of the public for the action. This isn’t simply a question of legal authority, its a political question as well. Obama has made this ‘his war’ by not bringing Congress aboard- it wont get any easier if he doesn’t do so soon, and if he doesn’t he risks losing enough pubic support to complete the mission (whatever it is). Sometimes niceties are non-trivial, and this is the case here.
March 21, 2011, 1:43 pmCarl the EconGuy says:
Congress can’t lead in a war, which is the essence of the CINC role for POTUS.
But Congress can prevent. Such as this: “By this Act, Congress prohibits the expenditure of any appropriated funds on the UN-initiated military adventure in Libya.”
With that, US troops are immobilized. The CINC can syncopate with the UN all he wants, but without Congressional authorizations and appropriations, he’s a dead duck.
Congress’ power over the purse is still unchallenged.
March 21, 2011, 1:44 pmBarnacle Bill says:
That would reflect my actual position, but playing Devil’s advocate here… There does seem to be a school of thought to the effect that since the UN charter bans war as an instrument of national policy, Congress (or at least the Senate) abdicated its constitutional power to declare war when it ratified the charter. I’ve read that this thinking is why the US hasn’t actually done a “declaration of war” since 1941, because it would be “illegal”.
March 21, 2011, 1:55 pmCarl the EconGuy says:
And I’ll add this: if Congress does *not* defund a military action initiated by POTUS w/o formal Congressional authorization, then Congress has given implicit consent to the action. A formal decision is completely unnecessary, because allowing the funding for the action is tantamount to support of the President’s action. Hence, in the present case, Congress is already on board, and has consented to Obama’s action. There is no longer any deniability on the part of members of Congress. They’ve bought into the action, with every last dollar required.
March 21, 2011, 1:56 pmInstapundit » Blog Archive » ERIC POSNER: Why Congress Played No Role In The Libya Intervention…. says:
[...] ERIC POSNER: Why Congress Played No Role In The Libya Intervention. [...]
March 21, 2011, 2:16 pmJoe Mama says:
James Madison to Thomas Jefferson: “The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the legislature.”
Alexander Hamilton to James Madison: “[W]ar is a question, under our constitution, not of Executive, but of Legislative cognizance. It belongs to Congress to say—whether the Nation shall of choice dismiss the olive branch and unfurl the banners of War.”
March 21, 2011, 2:22 pmRagebot says:
Was congress even in session when the war/whatever started? The House does not even have a budget, just a short term CR, so how do you figure they bought into the action.
It may be that Obama timed the “action” with the hope that by the time the House returned to DC the whole question would be moot; or at least the US military involvement would have been reduced to a very low level.
One big advantage the prez has is that his job is suppose to be 24/7 while congress is seldom in session 8-5; so the prez can pick and choose the time of any action that may be questioned.
March 21, 2011, 2:26 pmflenser says:
The contrary view, which was written into the U.S. Constitution, could survive only as long as the United States was protected by two oceans from foreign threats
You’ll have to remind me, what “threat” did Libya offer that war with it is justified?
March 21, 2011, 2:43 pmDoug Collins says:
No President has ever acknowledged the constitutionality of the WPA. I do not think Obama will be the first. OrenWithAnE(Quote)
At first glance, I was surprised to read the above in a discussion of war powers. Then I realized WPA wasn’t referring to the Works Progress Administration. But my misunderstanding raises a point: Congress has habitually thrown away all but their general power to legislate by making laws that say some variation of “the —- Agency will make regulations to—”. This is for much the same reason that they don’t really want to do more than complain about war powers- they don’t want the responsibility.
So when the EPA destroys parts of the economy and when Obama destroys parts of Libya, they are off the hook.
March 21, 2011, 2:43 pmCarl the EconGuy says:
Ragebot,
Congress does not have to be in session when POTUS initiates action. Whether they are or aren’t is not relevant. Either way, Congress can, whenever they choose, halt funding. They’ve been back, and all it takes is an hour of their time to stop the war by prohibiting the use of funds in its prosecution. If they don’t, they’ve agreed to pay for it. And by inaction, they’ve thereby consented, right? By commission or omission, the war is theirs.
Note that even if Congress voted against the war, but kept the funding going, POTUS could continue to go to war. It’s only when he’s denied funding for the war that his hands are completely tied. That’s why this thread is only a legal puzzle, and not a very interesting thread at that. The funding is the key, and that key is firmly in the hands of Congress. Words mean whatever the speaker chooses them to mean, but the buck is almighty and it alone can stop the planes, ships, and tanks from firing anything when the President and Congress disagree on legal authorities.
March 21, 2011, 2:47 pmAllan Walstad says:
I agree with Stephen Lathrop that the lack of Constitutional authority for the President to plunge the country into wars at his immediate discretion is not a bug, it’s a feature.
Everyone should sip that line carefully. Let it swirl around on the tongue — and, by all means, spit it out. What Profs. Posner and Vermeule offer is less an argument or thesis than a contemptuous gesture toward the Constitution, which is the highest law of the land. And this is just the logical next step for advocates of unbridled federal (and within the federal government, executive) power. In the past we would at least get arguments that some flagrant overstepping of Constitutional power was, really, Constitutional, under some tortured “interpretation” or other. Now it’s just like “Well, the Constitution deosn’t say what we think it should say, and we can’t be bothered with amendments, so to hell with the Constitution.”
March 21, 2011, 2:49 pmDonM says:
I recall how outraged some Democratic members of the legislature were that they were being forced, against their will to vote on the Authorization of Military Force before the election in 2002, and would have to justify their vote to their constituents.
March 21, 2011, 2:50 pmM Malone says:
If the Constitution means nothing, why is this Posner guy a law prof? Free lunches from the old man?
March 21, 2011, 2:55 pmMark Buehner says:
Pragmatically, Carl is right. But the political component is what will ultimately matter, and politically Obama has left his flank open to Congressional nattering that can undermine public support over time. Imagine if Bush didn’t have the congressional authorization for force in his back pocket with some of his chief critics name signed to it- it seems very likely that he wouldn’t have been able to carry on the war through the surge. If this thing drags on or escalates unexpectedly, the Republicans (and some anti-war Dems) are going to beat Obama over the head with ‘his war’. If he had Congressional approval (or gets it soon), or at least gets some of the principal Congressional Leaders to line up with him, he would largely inoculate himself to Congressional criticism, at least from this Congress.
March 21, 2011, 2:56 pmTomPaine4 says:
“But since the power to regulate the military is already delegated to Congress, what power is left over for the President to exercise as CinC?”
I’ll take a shot at this, though I caution that I have not found any legal authority, one way or the other.
I think of the CinC authority as negative: Congress shall appoint no military officers who do not answer to the President.
If the clause means no more than that, it is consistent with the general constitutional scheme of separation of powers (heck, even with the “unitary executive”), it is consistent with the allocation of warmaking power to the Congress, and it is consistent with the understandings of both Madison and Hamilton, as quoted by Joe Mama, above.
There are people reading this who know a lot more about constitutional history than I do. What do they think?
March 21, 2011, 3:01 pmmadawaskan says:
Isn’t all this moot for 60 days anyways? Do you want a military historian’s perspective?
Probably not but here goes…as best as I can recall the argument because I was only the student of one fine military historian.
Would you really want to bind up the Executive with the time constraints and the sieve of information that would involve consulting Congress?
Can you see cases where a speedy decision would be a necessity to insure one of the primary functions of a government-the preservation of the state?
Now those conditions have only ripened with time; with the advance of technology, and with the “advance” (- if we can call it that) of the techniques of warfare-terrorism.
As it stands now I think we have the perfect escape mechanism that allows for all that- the 60 day time constraint with 30 days allowed for withdrawal of the War Powers Act.
Now how all of the above conditions applies to Operation Dawn is beyond me-I don’t think President Obama has done much to convince the American public of the necessity.
I guess we have to consider ourselves lucky that no one has much abused it and that the country and the Constitution can survive the 60 days. Can the country survive the constraints of taking time critical responses to a democratic process of a Congressional vote?
That’s the conflict.
March 21, 2011, 3:14 pmJardinero1 says:
Every fascist regime has its apologists.
March 21, 2011, 3:20 pmAllan Walstad says:
In Libya?? Hell yes.
March 21, 2011, 3:23 pmMark Buehner says:
The War Powers Act purports to give the president leeway if we are under attack or threat of attack. That is not true in this case by anyone’s calculation. The executive branch doesn’t recognize WPA as the law of the land regardless.
Its a bit of a straw man to connect this current issue with a time sensitive threat to national security. Libya was neither time sensitive (the president was being criticized as dithering for weeks when he could have been working with Congress for at least a contingency) nor any threat to US security.
That being said, the president should have reasonably broad authority to use the armed forces… but the reality is if he goes off on his own he wont have developed the political cover necessary to ensure long term flexibility and resolve. This was clearly not a ticking timebomb situation (or at least only became so because the president waited so long to act without developing congressional support in the interim). I think this could turn into one of those ‘take what you want and pay for it’ situations. Obama got what he wanted, but there could well be a much stiffer political price than he bargained for. To me that’s about how the system should work. And of course if all goes well, Obama will rightly garner all the praise. But how often does all go well in war? You need the country (specifically Congress) behind you for exactly that reason, to bolster our resolve should things not go according to plan. Right now Obama has a pretty shallow pool of reserve political capital in this matter, and a lot of it is held by the opposition party. That’s not a strong hand.
March 21, 2011, 3:25 pmflenser says:
Would you really want to bind up the Executive with the time constraints and the sieve of information that would involve consulting Congress?
Yes. I certainly would.
Can you see cases where a speedy decision would be a necessity to insure one of the primary functions of a government-the preservation of the state?
Yes. But Libya was not one of those cases. None of our military interventions since WWII were one of those cases.
Can the country survive the constraints of taking time critical responses to a democratic process of a Congressional vote?
Please give an actual concrete example of one of these “time critical responses” made by any president in US history.
March 21, 2011, 3:26 pmg.e. Taylor says:
Why can’t the braggadocio filled congressional members, from either, any, and all “sides”, who pretend to swear a duty to uphold the Constitution, file bills, resolutions, whatever, barring any funding to military operations connected with Obama’s bombing campaign which was initiated the past weekend in Lybia? Such bar would be effective until proper Congressional authorization was obtained.
The person who did so would have instant credibility in the hearts of the American people.
March 21, 2011, 3:29 pmmadawaskan says:
Did you ( several of you btw) not see where I wrote this:
Now how all of the above conditions applies to Operation Dawn is beyond me-I don’t think President Obama has done much to convince the American public of the necessity.
March 21, 2011, 3:30 pmmadawaskan says:
I guess you really wouldn’t be able to debate the continuum angle…
How does a government that can possibly overturn it’s Executive every four years conduct ….
That would really set you all off.
I’ll spare you guys that. Better to be safe on your playing ground of “specialty”.
Yes I’m a “fascist apologist”.
Brilliant!
March 21, 2011, 3:37 pmgooners says:
You think jerking out funding from under American servicemen and women in the middle of military operations will win anyone in Congress support? Ha. People rally around the president and the military at times like these. There is always a window of time after the start of a conflict that the people are very optimistic. If, somehow, this war (conflict, operation, police action, NWO conspiracy) can come to a satisfying end within that window this debate will stay academic. That window is, incidentally, probably about the same as the window allowed by the War Powers Act.
March 21, 2011, 3:48 pmPragmaticist says:
“Sine poena nulla lex” – Without penalty there is no law.
March 21, 2011, 4:02 pmJ says:
Utter nonsense. What we now see is a congress that has made itself completely irrelevant. Our form of government has broken down into a truly imperial president with a judge/bench for back up. I’m sure some very smart person could figure out how much our congress costs us (cost of election plus cost of salary and running the congress)we can abolish an impotent, outdated body of government and apply that sum to our debt.
March 21, 2011, 4:02 pmGene says:
Maybe we need to take the subject of “war” more seriously. When’s the last time we actually declared war. That last time was 70 years ago on December 8, 1941. Since then we have had, at best, authorizations for force and ‘police actions.’ For that matter, we used to have a Department of War; not a Department of Defense.
Congress needs to fully take up it’s Constitutional mandates and fully address them with out euphemisms, understanding that launching 100+ cruise missiles at a, however execrable, foreign sovereign nation is a blatant act of war. Congress needs to insist that the President present such actions to the Congress as acts of war. And, Congress needs to respond with a declaration of war. Only when we’re talking about war as war will we have a congressional role in such operations such as Libya.
March 21, 2011, 4:02 pmspool32 says:
See Also: National Enquirer, John Edwards rumor
March 21, 2011, 4:24 pmsherlock says:
I well remember those simpler times when all the Democrats had to do was scream “Bush Lied!”, and then when the media also screamed “Bush Lied!”, that proved he was guilty of anything they needed him to be guilty of.
Funny how now, with a Democrat President, everything has become so darn nuanced.
March 21, 2011, 4:25 pmSarcastro says:
Yep, Obama’s claims of WMD’s seems shaky at best.
And 2 points for “Democrat.”
March 21, 2011, 4:41 pmshack o'kneel says:
We need to keep our eye on the live/ living Constitutional ball, in this game:
While Bush the Republican had to almost single-handedly cover the court to get UN and Congressional approval for his wars, Dem (Global) Presidents Clinton and Obama don’t have to hit home approval hoops for theirs; they only need believe the un-world will rule no fouls against them, while American men and women get unfairly roughed up when forced to score points for non-American others.
Also, Obama knows most Progs can be counted on not to block any furtherance of global refereeing, even if he travels (to Rio) while dribbling…
March 21, 2011, 4:42 pmPete E says:
It seems to me that if the president embarks on a truly wrong war, one where American “success” is contrary to American interests, congress has the ability to bring it to an end.
March 21, 2011, 5:05 pmCongress’s approval is only theoretical because no president has ever embarked on such a war. (And probably none ever will so long as congress retains this ability.)
OrenWithAnE says:
The rebels would have been slaughtered before it could even be moved to the floor.
March 21, 2011, 5:17 pmWhats happening in Congress today? « Kerry's Blogs and Brags says:
[...] Why Congress Played No Role in the Libya Intervention (volokh.com) [...]
March 21, 2011, 5:53 pmNeo says:
Congressional leaders irked they weren’t told of strikes
March 21, 2011, 5:53 pmJM Hanes says:
“Congress could not play a role. Lacking a leader who could commit it to a course of action, Congress could not make promises. Lacking a single mouthpiece, it could not be consulted.”
Jimmy Carter put it best, when he said that it was so much easier to work with dictators, because they speak for all their people…..
“President Obama is following a long line of precedents in which the executive lanched a foreign war without congressional authorization.”
You make far too little of Obama’s invocation of the U.N. resolution. The unprecedented working assumption here is that a U.N. mandate, not the President’s Executive powers, supersedes the need for a Congressional U.S. mandate. Fans of the International Criminal Court must be breaking out the champagne.
March 21, 2011, 6:05 pmKatahdin says:
Actually, those claims are true!
March 21, 2011, 6:07 pmrpt says:
Hi Orly.
March 21, 2011, 6:11 pmMark Buehner says:
Sure- unless of course Obama had spent the last three weeks working with Congress instead of his basketball brackets, in which case there was ample time to line up support. Worse case Obama can simply claim time had run out and he had to move. Now he just looks like he was caught hand wringing and had to act at the last second with less of his ducks in a row then was necessary.
Hillary has been out twisting arms of China and Russia to get UN support. Getting Russia and the Arab states to sign on could certainly have no been harder than getting Congress to OK a no fly zone.
March 21, 2011, 6:27 pmByung Kyu Park says:
Wright brothers happened to those oceans.
March 21, 2011, 6:33 pmMike K says:
Congress, chiefly the Democrats, lied Bush into war by endorsing his plans, then reneging once we were fully engaged. Why should Obama, or any other president, trust Congress to be any more responsible than the Arab League which changed its mind 24 hours after hostilities began?
The precedent Congress set in 2003 will haunt them a long time.
March 21, 2011, 7:13 pmVJW says:
The president is commander in chief “when called into the actual service of the United States.”. Who called our president into actual service? Congress? No. An imminent threat? No.
March 21, 2011, 7:16 pmAllan Walstad says:
I suggest you go back and read a bit more carefully what I was responding to:
Surely you are not claiming that the US cannot survive if rebels are slaughtered in Libya. Are you claiming that the fate of Libyan rebels overrides Constitutional restraints on arbitrary presidential power in the US? Is the US obligated to intervene in every civil war everywhere around the globe if the belligerents on one side are in danger of death? By all means offer Constitutional amendments.
March 21, 2011, 7:21 pmleo marvin says:
Yup. The food is awful, and such small portions.
(That said, I do think he should get Congressional approval.)
March 21, 2011, 7:50 pmOwen H. says:
You see Mick, whatever the UK thinks is irrelevant. President Obama was born in Hawaii, and therefore is a natural born United States citizen. There is nothing in the Constitution about whether or not another country might also consider him a citizen. And after all, even after the Revolution the UK considered Americans to still be British subjects. That’s part of how the War of 1812 got started. So I guess you think Washington wasn’t qualified either? He was a British subject at birth, and even served in the British colonial forces.
March 21, 2011, 8:11 pmOwen H. says:
What kind of drugs are you on? Seriously, we lied Bush into war? I mean, seriously?
March 21, 2011, 8:16 pmWfjag says:
In this case, because President Obama has assured the American people that there are no “boots on the ground”, Congress could order US military operations stopped (by ordering that no funds be spent) and suffer no political blowback. It would only be telling the USAF to order the planes to return to base and the Navy to stop launching cruise missiles.
March 21, 2011, 8:25 pmKatahdin says:
At the risk of repeating myself, Congress declared war on Japan on Dec 8th, 1941, so when you absolutely, positively have to declare war overnight, it seems like Congress has the wherewithal. If the reasons for war are less compelling than then, perhaps taking more time for reflection is wise.
March 21, 2011, 8:36 pmRicardo says:
Yes. Next question.
March 21, 2011, 9:43 pmPerseus says:
The UN resolution is a product of a treaty, which the president is essentially asserting is self-executing–at least when the president decides to execute it (AFAIK, there is no claim that the judiciary could force the president to execute a UNSC use of force resolution). The idea of a self-executing treaty is hardly unprecedented, though obviously hotly contested.
March 21, 2011, 9:53 pmPerseus says:
That was a limited-time offer that has long since expired.
March 21, 2011, 10:04 pmDavid McCourt says:
This is not correct. First, the problem wasn’t pirates (as in private actors), but “piratical” states, such as Tripoli and Tunis, with whom the U.S. had diplomatic relations.
And Jefferson neither sought nor secured any Congressional authorization before conducting offensive naval operations against Tripoli. Jefferson sent a naval squadron — a large portion of our entire navy at the time — to the Med in June, 1801 without informing Congress beforehand. The squadron’s commander, Commodore Dale, was instructed that, if any of the Barbary states declared war (Tripoli had already done so, unbeknownst to Jefferson), he was to blockade their ports and deploy his force “so as best to protect our commerce and to chastise their insolence — by sinking, burning or destroying their vessels wherever you shall find them.” American State Papers, ed. by Walter Lowrie, Vol II, p. 359.
In the summer of 1801 Dale’s ships trapped the Tripolitan flagship in Gibraltar, blockaded Tripoli’s harbor (a “no sail zone”), and attacked and destroyed the Tripolitan corsair Tripoli, all pursuant to these instructions from the Executive, and all before receiving any authorization from Congress, who gave post hoc authorization only in February of 1802.
March 21, 2011, 10:44 pmOwen H. says:
Well to be fair, a flippant answer is actually more than the assertion deserves anyway. In this case, it doesn’t matter if another country considered him a “subject” (AFAIK, not true anyway), only that he was born in the US.
March 21, 2011, 11:05 pmRicardo says:
I couldn’t resist.
As for Mick, his past contributions on this particular subject seem to suggest that arguing with him will be as productive as arguing with people who think the income tax doesn’t apply to citizens living outside D.C. or people who think that courtrooms with gold-fringed flags have no jurisdiction over civilians.
March 22, 2011, 12:29 amPerseus says:
The demand for a full declaration of war puzzles me, particularly if one takes an expansive view of the power and prerogative of Congress over commencing war. If Congress and only Congress may commence war, then surely Congress may authorize imperfect war just as it did during the Quasi War with France (indeed, the power of granting letters of marque and reprisal implies situations of undeclared war).
March 22, 2011, 12:36 amThe Senate, 101 says:
Professor Michael Glennon, in his opening statement at an April, 2008 Congressional hearing:
March 22, 2011, 4:04 amPubliusFL says:
Before that ships could cross the oceans, but a naval invasion just wasn’t a very realistic threat. It has only gotten less credible over time, not more. And an invasion by air is even less of a threat. But even so, I don’t recall that any of the enemies we have fought since, oh, Word War II, was a great air power capable of even reaching us over those oceans by air. So where’s the urgency in getting around Congress? Seems like those oceans are still pretty effective defenses.
March 22, 2011, 5:39 amPubliusFL says:
Where in Perkins v. Elg? Elg was found to be a natural born citizen, regardless of any claims on her made by Sweden.
So if the UK had refused to accept the independence of the US and stubbornly continued to insist that everyone born in the US was a British subject, would that mean no one could ever be President of the United States? Seems like a pretty silly way to run a country, allowing foreign law to trump your own like that.
March 22, 2011, 8:27 amPersonFromPorlock says:
Whenever we get down to arguing about ‘natural borns’, I like to point out that an exact reading of Article II, Section 1 tells us that the last President to be qualified under it was Martin van Buren.
March 22, 2011, 8:39 amOwen H. says:
Ricardo- I see what you mean.
March 22, 2011, 9:02 amPubliusFL says:
I have read the case. Although you mention the case of Mr. Steinkauler, you seem to have missed its substance. Steinkauler was a natural born US citizen, but Germany also considered him to be a German citizen. His rights and obligations as a US citizen were separate from and not affected by his rights and obligations as a German citizen. The Attorney General opined that even though Steinkauler could not invoke the aid of the US to get him out of mandatory German military duty, Steinkauler could eventually return to the US and be elected President of the Unites States. After having served in the German military!
March 22, 2011, 9:10 amTuesday Highlights | Pseudo-Polymath says:
[...] and the Constitutional question. Upshot, as I read it there, no Constitutional problem just a strongly worded promise broken [...]
March 22, 2011, 9:23 amDavid McCourt says:
What, pray, does Mr., or Herr, or Mr.-Herr-Mr., Steinkauler have to do with the constitutionality of the Third Barbary War? Talk about thread drift….
March 22, 2011, 9:41 amMick says:
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It has to do with the fact that the military is taking illegal orders from a Usurper (father was Kenyan, Obama 2 born British), who cares not for the US Constitution, and is deferring to a foreign entity on the decision to open military conflict, rather than congress.
March 22, 2011, 10:11 amDavid McCourt says:
Oh, I see. I’ll retire to Bedlam.
March 22, 2011, 10:24 amPubliusFL says:
The fact that the parents were naturalized was not relevant to the US citizenship of the minor. The opinion cites other cases where no mention is made of the parents being naturalized US citizens. And at least one where the father was assumed NOT to be a naturalized US citizens.
March 22, 2011, 10:35 amsubmandave says:
While a common belief, IIRC Congress actually did not defund Vietnam. Nixon was pressured politically by both Congress and the public and ended US involvement in Vietnam with the signing of the Paris Peace Accords on January 27, 1973. It was the continuing financial assistance to South Vietman that Congress defunded, leading North Vietnam to conclude they could then violate the Peace Accord with impunity. This gamble proved correct, Ford did not step in to assist our South Vietnam allies and, eventually, Saigon fell.
March 22, 2011, 10:46 amJM Hanes says:
It seems pretty hard to argue that the idea of self-executing war doesn’t represent an unprecedented threshold.
March 22, 2011, 10:47 amMick says:
Wrong again. They specifically said that those born of US Citizens are “natural born Citizens”. Those born of alien parents received no such distinction, EVER.
March 22, 2011, 11:04 amThe other point of the case is that the naturalization laws and Treaties w/ other nations are always respected. So you are wrong on all counts, even when you try to change the subject.
PersonFromPorlock says:
You’re right, I misspoke. What I was thinking of was the further operations in Cambodia that Congress did defund effective 15 August 1973.
March 22, 2011, 11:57 amOwen H. says:
A child born in the United States or its territories is a natural born citizen. Citizenship of the parents is irrelevant. Legal status of the parents is irrelevant. If another country also considers the child a citizen is irrelevant.
And you are irrelevant, Mick. And very, very wrong. It is sad that you aren’t a lawyer trying to make these arguments in court, so that you could the s*** smacked out of you by a judge the way Orly Tait did.
March 22, 2011, 11:59 amwfjag says:
No David, I was not incorrect. My summary, like most summaries, left out a lot of details. However, Jefferson did secure authorization before the attack. Actually, he secured two authorizations from Congress:
First Barbary War, Wikipedia, http://en.wikipedia.org/wiki/First_Barbary_War
(some emphasis by italics supplied).
Although my summary wouldn’t be sufficient for a term paper in American History from the French and Indian Wars through the Closing of the Frontier, it was sufficient for the point offered — Jefferson’s attack on the Barbary Pirates is not precedent for Obama’s failure to secure Congressional authorization. Jefferson secured Congressional authorization before there were hostilities.
March 22, 2011, 12:06 pmPerseus says:
Truman, among others, seems to have more or less embraced the idea.
March 22, 2011, 12:09 pmPersonFromPorlock says:
I’m sorry, but I don’t understand what you’re saying. My point was simply that the passage
strictly read, applies the phrase “at the time of the Adoption of this Constitution” to both “natural born Citizen” and “Citizen of the United States” because of the placement of the comma after the words “United States.” Therefore the only persons eligible for the presidency are those born prior to September 17th 1787. The last such person to hold the office was Martin van Buren, b. December 5, 1782.
All this is by way of saying that IF we’re going to argue about how many angels can dance on the head of a constitutional pin, nobody’s eligible.
March 22, 2011, 12:15 pmMark Buehner says:
The Case-Church Amendment forbid military operations in Indochina without congressional approval.
March 22, 2011, 12:18 pmMark Buehner says:
And for you birthers- look, snap out of it. You are so entranced with making your argument that you have missed one vital detail: even if you’re right it doesn’t matter. No court is going to pull down a sitting president over a technicality, congress doesn’t care, and the vast majority of the american people dont either. This dream of the SCOTUS coming down the steps with a decision tossing obama out on his ear simply wont ever happen, no matter what, under any circumstances. Same with an impeachment.
And try to think this thing through- the native born wording was put in to prevent a foreign ‘prince’ from somehow being forced on us from the outside by another power. Its not an issue for us. And it should (but doesnt) go without saying that every time you mention this subject it helps Obama politically, because, again the vast majority DOES NOT CARE. And they wont, you wont talk them into it, for the simple reason that in reality it IS a technicality. Nobody (aside from yourselves) wants a political nuclear war over a technicality. We have lived with much worse violations of the direct letter of the constitution many, many times. Learn to live with this (as you see it), and if you like, spend your energy on activities that actually could see Obama lose his reelection, instead of continuing to help him get reelected by annoying and embarrassing the rest of the country.
March 22, 2011, 1:11 pmDavid McCourt says:
wfjag,
I’m afraid that’s still wrong. It is true that Wikpedia, in the way that it lays out the chronology, strongly implies that there were two separate authorizations from Congress, the first — from which it even seems to quote — coming before the U.S. attack on the Tripoli and well before the (supposed second) authorization, in the Act of February 6, 1802.
The problem is: Wikpedia is wrong, not to say misleadingly wrong, on this point — for which it understandably gives no supporting citation. I’ll repeat what I said in the other thread after a fruitless search for Wikpedia’s missing cite:
The two separate Congressional authorizations that Wikpedia claims were given for Jefferson’s naval operations against the Barbary states are in fact just one authorization, made in the Act of February 6, 1802. The quoted words Wikpedia claims come from a prior authorization may be found in Sec. 2 of the 1802 Act.
Jefferson himself admitted he acted without Congressional authorization in his first annual message to Congress, on December 18, 1801.
Many accounts by opponents of executive power give rather vague accounts of what happened, and when it happened, lest they reveal the truth: that beginning in June, 1801, Jefferson conducted offensive military operations for months before seeking, in December 1801, to obtain Congressional approval, which approval was given only in February, 1802.
March 22, 2011, 1:23 pmLegal Argument For Obama’s Libya Action | Dueling Barstools says:
[...] Volokh, via Instapundit, why the President was within his authority to enter Libya without consulting Congress: President Obama is following a long line of precedents in which the executive lanched a foreign war without congressional authorization. The president disavowed these precedents during his campaign; he may or may not attempt to distinguish his campaign statement by invoking the UN security council resolution authorizing the attack, as Truman did for Korea. But this legal wrangling is all superstructure. Congress is disabled in numerous ways from making practical contributions to a war effort. It cannot prevent the president from starting a war, and it is nearly impossible to halt an ongoing war. Wars, then, simply become an opportunity for members of Congress to stake their reputations as hawks or doves for the sake of future elections. [...]
March 22, 2011, 1:37 pmRyan Vann says:
Silly sophistry indeed, but then again that accounts for the majority of what Law is, that and magical phrases and regalia. Anyway, I am with the poster who question where ole bat ears Kucinich is in all of this; where are his outcries for impeachment?
Hilarious stuff there; you even managed to sneak in a press secretary-esque “look!”
March 22, 2011, 1:38 pmleo marvin says:
Can’t help it. Master makes me do it. Must…Serve…Usurper. If you have any pity, I beg you, stop me before I kill again.
March 22, 2011, 5:56 pmConservatives tells us not to worry about the Constitution’s death « Fabius Maximus says:
[...] how the new State works, looking at the exercise of its greatest power — making war: “Why Congress Played No Role in the Libya Intervention“, Volokh Conspiracy, 21 March 2011 — Excerpt: President Obama is following a long line [...]
March 22, 2011, 9:11 pmRicardo says:
By the way, not that Mick will ever be convinced of anything, but Obama is not and never was a “British subject” as the term is defined today.
At birth in 1961, he was a citizen of the United Kingdom and Colonies.
When Kenya gained independence in 1963, Obama gained Kenyan citizenship. At the same time, the Kenya Independence Act converted his CUKC status to that of “commonwealth citizen.”
Britain further reformed its nationality law with the British Nationality Act of 1981 which came into force in 1983. This law did not change Obama’s status except to reinforce the fact that he did not hold any British nationality and his only connection to the U.K. was his citizenship in a commonwealth country.
Finally, Obama loses his Kenyan citizenship in August of 1984. Obama has not held any kind of British nationality or commonwealth citizenship since 1984.
March 23, 2011, 11:06 amAnton’s Weekly Digest of International Law, Vol. 2, No. 12 (24 Mar 2011) | Anton's Weekly Digest of International Law says:
[...] Posner, Why Congress Played No Role in the Libya Intervention, Volokh Conspiracy (Mar. 21, [...]
March 23, 2011, 2:35 pmPresidential War Making « Strict Liability in Blog says:
[...] militarily in actual hostilities against the United States. As Eric Posner (re Volokh Conspiracy) points out: Congress is disabled in numerous ways from making practical contributions to a war effort. It [...]
March 26, 2011, 3:18 pmThe Acute Threat of Mass Slaughter: Why I Currently Support the Intervention in Libya « The Ayes and Nays says:
[...] From Eric Posner of the legal blog The Volokh Conspiracy: Why Congress Played No Role in the Libya Intervention [...]
March 26, 2011, 5:19 pm