The Constitutionality of the Attack on Libya
Thursday, March 24, 2011
This question hasn't gotten a lot of coverage in the media. There has been some partisan whining and arguments, but it is hard to take them seriously when the GOP is also saying that Obama didn't asct fast enough. Those aside, there have been calls from Democrats, including Dennis Kucinich, Maxine Waters, and John Larson, calling into question the Constitutionality of the actions in Libya. There is also Obama's statement from 2007:
The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
Over at Volokh, there are several good posts on this subject, here, here, and here. There are a quick read, so check them out.
First of all, I support the action in Libya and also think that going the NATO/Arab League/UN route was the way to go. Assuming the role of 'leader' in this action would make it another US versus the Arab world intervention and would probably make Gaddafi into a sympathetic figure. That being said, I tend to agree with those who thought he should have gained Congressional approval. Like the author points out, every major US action since WWII (except for Korea) had Congressional approval. In addition, the War Powers Resolution of 1973 states that the President can send U.S. armed forces into action abroad only by authorization of Congress or if the United States is already under attack or serious threat.
I don't think that short-term, small-scale actions require Congressional approval, but this doesn't seem like one of those. If it goes on much longer, the arguments saying he doesn't need Congressional approval seem to get weaker and weaker.
12 comments:
Doesn't the War Powers Act give the President 100 days to present a plan to Congress?
"...every major US action since WWII (except for Korea) had Congressional approval."
Really? What is considered "major". I don't see this as big an action as say the invasion of Grenada, Panama and more.
The president has 48 hours to submit to the speaker of the House and the president pro tempore of the Senate a report setting forth:
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.
Once this is done, they can only stay for 60 days without Congressional approval.
Grenada enjoyed some level of Congressional support. I think that a case could be made for Grenada (and Libya) not rising to the level of something that required approval. In Panama, Noriega said that a state of war existed between the US and Panama before any troops were sent. This would allow the president to take action without Congressional approval. There were also Treaty considerations.
Politically, I don't see why he didn't get Congressional approval. He would have gotten it, easily.
From a public perception standpoint I think the Congresscriters will look like they are in need of an ego fluff by demanding the Presdent come to them.
Oh and Obama can only benefit from Dennis Kucinich throwing a fit.
I think he could of better benefitted from asking for (and easily getting) some kind of bipartisan authorization from Congress. If not, then do you believe it is a good thing for:
A. Congress to bend over and not exercise a power that they are not allowed to delegate.
B. The Executive branch to ignore laws. In this case, the War Powers Resolution of 1973.
We saw the previous administration ignore laws that they didn't like. I just don't see this as a good trend.
I am with Steves, this is not a good trend.
Loose the Empire, forget foreign adventures, they only lead to bankruptcy.
Peace is the way of the future.:)
Br. JP
Politically, I don't see why he didn't get Congressional approval. He would have gotten it, easily.
How do I put this politely...? "You're fucking high?"
Okay. Kidding aside, for anyone to believe either the dishonest, unpatriotic destroy-the-President above all else shitheels in the GOP or the useless scared to take a stand without weeks of polling and self-doubt Dems could get their shit together to properly debate and pass a resolution on this is crazy.
It would have been nothing but a platform for everyone from McCain to Kucinich to stab Obama repeatedly in the back from left, right and supposed center.
Now, that's not supposed to be a defense of Obama's actions. I'm not sure I support intervention, but if it was going to happen I think that's an accurate assessment of what would have happened were he to try and involve the completely disfunctional branch.
To my mind, Obama put the effort in and got the more important approval on this case: the international--especially the Arab-- community.
Put it this way. If this is truly the short-term, temporary support role Obama claims, then he was within the War Powers Act and these clowns can STFU.
Or, if this is a quagmire and we're still heavily involved in 60+ days, then by all means, I hope Congress kicks his ass and pulls the funding.
Kucinich is going to throw a fit no matter what. I agree with Bob, that it will only benefit Obama. McCain has consistently called for military action. I have a hard time seeing how he is going to do a 180 on this. Congress may not have been 100% behind him, but he would have gotten the votes to do what he wanted for now.
Put it this way. If this is truly the short-term, temporary support role Obama claims, then he was within the War Powers Act and these clowns can STFU.
It still ignores one of the main provisions of the War Powers Resolution that says, absent a declaration of war, the use of force must be to protect the US or defend us from an attack. This clearly was not a defensive action.
To my mind, Obama put the effort in and got the more important approval on this case: the international--especially the Arab-- community.
I agree that he deserves a lot of praise for how he has handled this aspect.
Again, I don't see this as a good trend. No matter how stupid Congress is, I fail to see how this is a good justification for one branch of government ignoring the Constitution.
I don't disagree with that, steves. What would really be nice would be if all three of the branches functioned properly. Right now, I'd posit that none of them are. The Executive is too powerful. The legislative branch is totally fucked up, and one case of declaration of war, much as they bitch about it, the fact is they are only too happy to avoid the responsibility--perhaps even more than any President wants to take it. And the Judicial Branch is a bought and sold stamp for government and corporate power.
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