Patterico's Pontifications

5/20/2011

The Last Fig Leaf of the Legality of This War in Libya Falls Off Today

Filed under: General — Aaron Worthing @ 3:36 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

From ABC News:

The legal license President Obama used to justify U.S. military intervention in Libya expires today, and there’s little sign the White House is working quickly to get it renewed.

Exactly two months ago, Obama notified Congress of his unilateral decision to engage in “limited military action” to help defend the Libyan people from attacks by their leader, Moammar Gadhafi.

But under federal law — the War Powers Resolution of 1973 – Obama is only allowed to keep U.S. forces engaged in hostilities for 60 days, unless Congress declares war, authorizes funding for the effort or extends the deadline.

Congress has not enacted legislation authorizing military involvement in Libya, and the White House has not made a public effort to comply with the rule.

Experts say this is the first time an American president has defied the War Powers Resolution’s deadline for participation in combat operations without any concurrent steps by Congress to fund or otherwise authorize the role.

Well, as regular readers of this blog know, this war was illegal from day one. Follow that link if you want to read my analysis of it.  But the short version is this.  Under the War Powers Act, the president does not have the ability to start a war without congressional consent.  Period.  The sixty-day provision only applies to when we are attacked.  And if you think that this law is unconstitutional, then that doesn’t make it better—it makes it worse.  His power under the Constitution is less than under the War Powers Act.

And if you think my view is radical, I want you to consider the words of a certain constitutional scholar:

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.

Who was this crazy constitutional scholar who said that?  None other than Barack Obama.

And that is what makes this all the more infuriating. As I explained several months ago:

And all of this is designed to avoid the obvious illegality of it—declared by no less than candidate Obama and Senator Joe Biden.  You know, in my day job, I occasionally have had to deal with a certain word: “willfully.”  You might have been told that “ignorance of the law is no excuse for breaking it.”  Well, that’s not entirely true.  In some federal laws, particularly criminal federal laws, it is actually necessary to prove the defendant knew that his conduct was illegal.  From Bryan v. the United States:

A person acts willfully if he acts intentionally and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law. Now, the person need not be aware of the specific law or rule that his conduct may be violating. But he must act with the intent to do something that the law forbids.

And indeed, in some limited cases the courts have even required you to know which exact statute has been violated.  [Warning: this is not legal advice.  Consult with your own lawyer on how this rule might apply to your life.]

My point is this, and maybe this will explain why I have written three posts on the legality of this war (counting this one).  If you believe that Obama is breaking the law, then he is not just accidentally doing it.  This is not a case where the President honestly disagrees about what the Constitution and other laws say and just got it wrong.  He is willfully doing it, as that term is understood in that case law.  He has said he cannot do this.  His Vice President has concurred.  And yet here he is today, doing precisely what they told you he could not legally do.

But up until now they could depend on the public’s collective ignorance of the law and the common myth that the War Powers Act allows the president to start wars on his own without congressional approval and without us being attacked.  He had that fig leaf that allowed him to pretend that he could legally do what he himself told us he couldn’t.  And that leaf falls off at midnight.

And I still remember Rep. McClintock’s speech on the floor of the House:

“Shame on us if we allow this act to stand unchallenged any longer,” McClintock said.  It is our national shame that he said this almost two months ago and our Congress did nothing about it.  I don’t care if you support the war effort, think Gdaffy is a bad guy, etc.  I think Gdaffy is a bad guy and I will celebrate if we put a bullet in his head.  But it is not enough to do the right thing.  You have to do the right thing, the right way.

[Posted and authored by Aaron Worthing.]

89 Responses to “The Last Fig Leaf of the Legality of This War in Libya Falls Off Today”

  1. Name me one “Chicago Machine Politician” that has Ever given a damn about the law.

    bitterclinger (95b610)

  2. Don’t look for Meghan’s coward daddy’s help.

    “I’ve never recognized the constitutionality of the War Powers Act, nor has any president, Republican or Democrat,” exclaimed Sen. John McCain (R-AZ), speaking to reporters on Tuesday.*

    I don’t think he understands how constitutionality is adjudicated, but nobody ever accused him of having an excess of knowledge.

    happyfeet (a55ba0)

  3. You know, I think it really needs to be mentioned in neon blinking letters 100 feet tall that if the War Powers act is unconstitutional, then the Libyan ‘kinetic action’ was unconstitutional without congressional approval.

    Some extremely strained attempts have been made to claim that the explicit placement of this power in one branch doesn’t mean another branch has this power, but that’s a tired failure. Congress has the power, and the War Powers act was an attempt to use that power to give the president a little slack in emergencies.

    So Mccain’s attack on the Act is actually kinda silly.

    We have a system of laws. Mccain can’t pick and choose which are good ones. This is a major piece of our checks and balances, and to simply ignore it really ticks me off.

    If Mccain doesn’t like the law, he should try to change it. But as Happyfeet notes, this is not exactly a champion of the constitution.

    Dustin (c16eca)

  4. They seem terrified about having the senate debate the matter and vote on it. I think the ‘rats are crippled by their past. There is something very bizzare about it. The party in control literally can’t lead. It’s some kind of limbo. They couldn’t even pass a budget last year or offer a budget this year.

    Republicans running for senate next year don’t even need to make it personal. Just run against the unresponsive Democrat senate.

    j curtis (67174e)

  5. Look- what are the chances that the Obamedia start screaming “WAR POWERS ACT! WAR POWERS ACT!” on the nightly programs?

    Yeah.

    The United States Constitution: just a suggestion since 2009.

    Jones (a779a2)

  6. If Mccain doesn’t like a law he shouts about nativists.

    DohBiden (15aa57)

  7. Enforce the dang law

    Bob Reed (5f2db5)

  8. I thought legislative vetoes like this were banned by INS v. Chadra. My understanding was that while the WPA was considered unconstitutional, neither party is all that willing to let the courts decide because the stakes are so high. No president has acknowledged the WPA, but have presented reasoning “in the spirit” of the WPA while denying its authority.

    David (f59abf)

  9. david

    you have it backwards. we are not talking about a legislative veto.

    we are saying he doesn’t have the power to have done it in the first place.

    Aaron Worthing (73a7ea)

  10. David, read the constitution. Congress alone is vested with the power to make wars, even down the point of dealing with pirates. The President is meant to administer Congress’s laws on such matters.

    The War Powers Act is Congress extending its permission for the president to handle emergencies. Without the act, the President has less power. It is not a Veto and does not restrict the President’s power. It expands it greatly.

    Democrats actually suggested impeaching Bush over going farther than authorizes. Obama himself explained his understanding of his constitutional powers as limited to the WPA and any AUMFs.

    This is not controversial, except those who just don’t understand the law, or, frankly, are not honest. This is an extremely serious breach of the constitution, and Obama’s own words show he’s damn well aware he’s breaking his oath of office.

    either party is all that willing to let the courts decide because the stakes are so high.

    ?

    This is a matter for impeachment, in my opinion. Let the Senate claim Obama is not breaking the law. Let them say that the next Republican president can engage in any war he likes, as though that aspect of the constitution was in a completely different Article. I dare them.

    Dustin (c16eca)

  11. if it’s a matter of impeachment it’s the impeachment of the cowardly congresswhores what are too pusillanimous to do their duty and vote yes or no on taking our country to war for ill-defined reasons in Libya having something to do with securing oil drilling there because they are too cowardly to face the umbrage of the media were they to allow oil drilling here (google, for example, “Meghan’s coward daddy” and “ANWR”)

    happyfeet (3c92a1)

  12. Constitutional scholar my ass. It’s obvious to even us rubes in Kansas this imposter knows jack shit about the constitution and cares even less.

    kansas (b73648)

  13. Yes, Happyfeet. I most certainly agree. It is our congress’s job to put this issue to a vote. Make the best case they can, and put that to a yes or a no.

    But instead, it’s game game game game game, and I do not just mean from democrats.

    Dustin (c16eca)

  14. After all that rhetoric from the Democrats about Bush’s “illegal” wars, this is the kind of leadership Obama gives us? Which is to say, none.

    The unending utter incompetence of this clown really is beyond belief. I thought he was an Empty Suit(tm) and would be a lousy President.

    But Obama has been incredibly worse at the job than even I could imagine in ’08. In my most partisan ranting during the election, I would not have predicted this level of ham-fisted, tone-deaf, incompetence at the simple things.

    SPQR (26be8b)

  15. happyfeet

    Zero would never, ever, ever, risk the lives of out nations children for oil.

    Unless the oil were to somehow belong to Mr. Soros. When it comes to Mr. Soros and his property our boy barry knows who is the boss.

    highpockets (eb527b)

  16. #15 out = our

    highpockets (eb527b)

  17. It is stupefying how the media is obsessed with “process” when a GOP entity is running a given branch, but when Dems do, all that matters is preservation of their power.

    How about all the refusals to honor GOP subpoenas from the House?

    Our Republic is in great peril. As with all great historic powers, ours will fall from within.

    Ed from SFV (cf17f9)

  18. We haven’t had a constitutioanlly-declared war since 1945.Though Truman, LBJ, the Bushes and Clinton at least had the decency to get Congress to vote on authorizations.Obama-Constitution, shomnstitution-The One doe what ever The One wants.

    McCain, despite his heroic service to this country,goes from merely unstable to positively maniac with each passing day.If we’re going the to board the impeachment train, might want to have a stop in Arizona.

    Bugg (ea1809)

  19. There is a pattern here.

    If and when a right-leaning president is elected again, such actions will be condemned as the second coming of Bush.

    The whole supposition rests on the belief that people are stupid. They are not. The elite, not so much.

    Ag80 (1bc637)

  20. Bugg, there is no magic formula that Congress must write in a resolution for carrying out its war powers. So long as they are authorized by Congress, wars are not “unconstitutional”. The AUMF is as much a valid declaration of war as that adopted December 8th 1941.

    SPQR (26be8b)

  21. Tapper: White House on War Powers Deadline: ‘Limited’ US Role in Libya Means No Need to Get Congressional Authorization.

    My take: To Nato we sail, across a wide sea, to thank Nato’s leaders (but kill not Kadafi!). (Really bad poetry and hipshot legal analysis of Tapper’s report.) If anyone happens to find a link to the letter, I’d appreciate it if you could leave me a comment with it on my blog. Thanks!

    Beldar (7c0dd5)

  22. Libya Lark Loses Last Legal Leaf

    Legislators Leery

    happyfeet (3c92a1)

  23. We are fucked.

    Mr. Pink (3a5df7)

  24. The President doesn’t believe that he is bound by the unconstitutional provisions of the War Powers Act….
    The Senator demands that the President observe the strictures contained within the War Powers Act…
    Oops…same guy, different offices!

    Is there no lie that this “person” will not tell to advance his political position?

    AD-RtR/OS! (60e091)

  25. …more

    I can do anything I want, because “I Won!”.

    AD-RtR/OS! (60e091)

  26. _____________________________________________

    Who was this crazy constitutional scholar who said that? None other than Barack Obama.

    It’s a peculiar manifestation or variation of a phrase that I think sums up so many on the left to a “T”: Limousine liberalism. IOW, the ability of such people to talk out of both sides of their mouth, to be absurdly insincere and phony, to be exactly what they deem their political opposites are guilty of.

    Mark (411533)

  27. ___________________________________________

    In my most partisan ranting during the election, I would not have predicted this level of ham-fisted, tone-deaf, incompetence at the simple things.

    I immediately knew something was really amiss — really screwed up — about the guy based on one simple thing: His sitting in the pews of Jeremiah Wright’s church for almost 20 years and not only not becoming squeamish about the rhetoric he’d listen to, but instead embracing those ravings and rantings and wanting the deliverer of such extremism to be a close adviser.

    Mark (411533)

  28. The hacktitude of the Left

    I have visited talkleft.com, talking points memo, and politico.com and none of them are covering this story.

    Well, politico sort-of covers the story, but with one huge glaring omission, not one word of the Obama assertion that the War Powers Act does not apply to U.S. efforts in Libya.

    Brad (d9a8d4)

  29. We just a did a deal with the Libyans, and Obambi then turns around and stabs them in the back, by opening up military operations agaimst them. We already know what they do when someone pisses the Libyans off, and this is for sure going to piss them off.

    Obambi is practically guaranteeing that more Americans are going to be killed in terrorist attacks, because he double-crossed the Libyans, and then he didn’t finish the job, and kill off K-Daffy and co.

    He’s an incompetent idiot, and he ought to be impeached for that reason alone.

    You want to pick a fight with scumbags who already have murdered hudreds of Americans, then you damned well better fight the war to its coclusion, befoe there’s another Lockerbie.

    Obambi?

    One of the most incompetent clowns this country has ever been saddled with…and that’s saying something.

    Dave Surls (29bc42)

  30. David @ #9 ~ WPA is “considered unconstitutional” by most legal scholars, but not by any court of competent jurisdiction. Until it is repealed, stayed, or overturned, it is the law of the land, however flawed.

    The reason there has never been a true challenge over the WPA is because both Presidents and Congresses have an interest in continued ambiguity. If a case were brought, the courts would decide one way or the other. If for the WPA, the President’s authority would be forever curtailed. If against, Congress’ power limited. Neither have ever decided to risk putting those binds on future Executives or Legislatures.

    So both branches prefer to maintain their own view, and not risk a legal determination on it.

    Estragon (ec6a4b)

  31. FOX NEWS POLL

    Obama approval +14

    55% Approve
    41% Disapprove

    4 more years

    Victory (42d3a3)

  32. If this were Bush/Cheney in the WH, wouldn’t the libtards say that this is just another war for oil?

    Impeach Obama! Failure to uphold his oath to protect and defend the constitution…

    nocoen (4478dc)

  33. “Victory” is a racist plagiarizing midget hilljack sock puppet, who has been banned under multiple names. You are an idiot, banjo strummer.

    EricPWJohnson, counter of joooooooos and hater of Palins (306f5d)

  34. Your an jerkoff Victardory.

    DohBiden (15aa57)

  35. Oh hey you forgot to take off your sockpuppet.

    DohBiden (15aa57)

  36. Silly wabbits. Don’t you know that the War Powers Act only applies to Republican administrations?

    Tully (62151d)

  37. Isn’t the real Eric Johnson a strummer of Strats?

    Arizona Bob (aa856e)

  38. I mean didnt they elect Obama to stop the all these wars? It’s almost as if all the bullshit they bitched about during the Bush administration was all lies and they really just wanted the President to have a D in front of his name instead of an R.

    Mr. Pink (3a5df7)

  39. Sadly, I had high hopes when Obama entered the office. He needs to be impeached.

    Aaron (e512e5)

  40. Dave Surls has a point.

    Libya actually was one of those countries that was reacting to diplomacy. They gave up their nuclear weapons program and stopped supporting terrorists thanks to Bush’s success.

    Obama doesn’t seem to give a crap about what benefits the United States. To him, that achievement is seen through the lens of politics alone. It makes Republicans look competent. So it’s very convenient to Obama to destroy those accomplishments. And next time a Republican is in the Oval Office, trying to use diplomacy to accomplish something, Obama’s political BS will have made that much more difficult.

    This is why, out of an effort to survive as a nation, we have practiced the concept of politics stopping at the water’s edge. Do you know how easy it would have been for Bush to blame George Tenet for 9/11 intel failures? Or Bill Clinton? Or Sandy Berger?

    But he wanted us to be safe, rather than merely wanting the GOP to win points, so we just moved forward as best as we could.

    Obama obviously doesn’t care about that. He doesn’t really even care about the impact to ‘progressive’ politics after he’s out of office, likely replaced by a Republican who will have a much easier time invading other countries if the end result of this constitutional crisis is a massive increase in executive freedom for warmaking.

    What we are doing in Libya is an act of war. We are invading their territory and blowing up their military targets. Only Congress has the power to permit that. Period. If you don’t understand why we don’t vest this power in one man, then you don’t understand the point of America.

    Dustin (c16eca)

  41. Omoron needs to be impeached.

    DohBiden (15aa57)

  42. ‘Hey, let’s bomb the crap out of a country that admitted to a WMD program and gave it up, and stopped supporting terrorism, because of behavior that we see in two other countries, Syria and Iran, that support terrorism still and also have WMD programs!’

    Gutsy Call!

    Stupid call, too. Every one of our enemies knows now that they should never give up terrorism or nuclear weapons programs. They need to kill as many Americans as possible for presidents like Obama to treat them with respect, and those who suggest being nice to the USA should remember that this is why Libya is being bombed.

    Gutsy Call!

    Dustin (c16eca)

  43. “I worked for a lot of these guys [eight presidents], and this is one of the most courageous calls, decisions that I think I’ve ever seen a president make. For all of the concerns that I’ve just been talking about. The uncertainty of the intelligence. The consequences of it going bad. The risk to the lives of the Americans involved. It was a very gutsy call”

    – Secretary of Defense Robert Gates on Obama’s decision to get Bin Laden

    Victory (42d3a3)

  44. Willie the racist hilljack plagiarist Yelverton is a coward.

    JD (318f81)

  45. Victory please stfu.

    DohBiden (15aa57)

  46. Awww, if victory’s best argument for Obama that he finally, after 16 hours, nodded his head to a no brainer call?

    Isn’t that special? I feel sorry for him. Imagine shilling for someone, and that’s your best argument.

    Gutsy call! His own administration says so, so that’s pretty authoritative.

    But I agree, Obama made another gutsy call with Syria and Iran, vs Libya, too. It takes guts to have such suicidal policies.

    Dustin (c16eca)

  47. Look Victory doesnt even care about the point of this post.

    Bush war=bad

    Obama war=good

    Mr. Pink (3a5df7)

  48. _____________________________________________

    Sadly, I had high hopes when Obama entered the office.

    In this age of the Internet, when finding background information on a public figure — and reading or participating in debates about such a person — is easier than ever before, I’m totally puzzled by people (assuming they’re not rock-ribbed liberals/Democrats) who gave Obama the benefit of the doubt and certainly were optimistic about him.

    Voters using the excuse of ignorance and naivete would have been understandable years ago, but not in today’s era. Even more so when the history of Obama’s life was not full of innocuousness and ambiguity, but instead was full of clear-cut scrounginess. And I’m not even factoring in things like Jeremiah Wright.

    Mark (411533)

  49. Mark, they wouldn’t need $1,000,000,000 for their campaign if they didn’t need to work extremely hard to fool Americans.

    It puzzles me too that it could work, but some of these guys are experts at manipulating the kind of people who can be fooled. No offense intended to Aaron, and I think a lot of people have realized Obama was a fraud.

    Dustin (c16eca)

  50. Why are Obama’s wars good but bush’s wars are tyranny?

    Why did the left side with Qaddaffi when Reagan was president but stabbed him in the back now that Obama is president?

    DohBiden (15aa57)

  51. McClintock can run in ’12 and win the right, left, the middle and the paulbots. The 20% OFA crowd will not bail on obama, no matter what. Look at Victory’s post. No consistency, no principles.

    Vermont Neighbor (1e48bc)

  52. Look at Victory’s post. No consistency, no principles.

    Very good point. If Victory is who he appears to be, then his blog was much harder on Bush for actions that are drastically more mild, legally, than the Libyan invasion or the Osama strike.

    He’s a partisan hack, even on national security. He screamed for years about how horrible these steps were under a Republican, even when legal. Now a Democrat does them and he cheers? Pathetic.

    Dustin (c16eca)

  53. Why the interest in Egypt and Libyan freedom fighters now?
    Why did this administration do nothing while honest freedom seekers marched in the streets of Tehran?
    Zero did nothing.
    His failure to act while the Mullahs tracked down and arrested or killed Iranian supporters of democracy proves he actually wants Iran to destroy MENA.

    highpockets (eb527b)

  54. Are there no new posts because the World is ending today?

    AD-RtR/OS! (283024)

  55. It’s a reverse time zone rapture. Cali’s already gone. :(

    BTW, someone said no president has ever recognizes the War Powers Act, but this is untrue. Obama’s admin actually specifically recognized it.

    And look at this:

    Congressional action in support of the mission would underline the U.S. commitment to this remarkable international effort. Such a Resolution is also important in the context of our constitutional framework, as it would demonstrate a unity of purpose among the political branches on this important national security matter. It has always been my view that it is better to take military action, even in limited actions such as this, with Congressional engagement, consultation, and support.

    They were calling this the “war powers act notice” since they have to notify congress within 48 hours. 60 days later, they pretend this never happened.

    Dustin (c16eca)

  56. Comment by Estragon — 5/21/2011 @ 2:52 am

    I think you have it backwards:
    Any affirmation of the WPA by the Court would be granting the President, by the Congress, a longer leash than specified in the Constitution;
    A striking down of the WPA, would limit the courses of action open to a President in an emergency.

    AD-RtR/OS! (283024)

  57. There’s not even a wide-spread agreement whether to call it the “War Powers Act” or the “War Powers Resolution.”

    @ Victory (#42): I’m not disagreeing with Sec. Gates on this (although neither do I concede that everything he says is gospel; he’s a smart guy, but there’s a certain flexibility required to serve two such different presidents as SecDef, and making his current principal look good is stil part of his job).

    Obama had three choices when they brought him the intelligence on bin Laden. He could choose to do nothing. He could attack with JDAMs from a B-2 or with cruise missiles. Or he could send in special ops forces.

    I absolutely agree that the choice he made was the correct one. And I will further stipulate that it involved more risks — to the U.S. personnel involved, to our national image and interests, and (last and very definitely lease) to Barack Obama’s political standing — but that they were outweighed by the potential benefits.

    But how damn dumb would Obama, or any president, have to have been to choose either of the first two options — given that Bill Clinton had already tried each of those other choices without success? The first one would have gotten him impeached when/if word got out. The second would have denied America and the world the certainty that came from having bin Laden’s corpse in our control even if it worked, and we might not have ever been sure whether it had worked.

    So if this was a “gutsy” decision, it was also incredibly, blazingly obvious. If you call the failure to make the gutless choices on this one occasion “gutsy,” then yeah: Congratulations, President Gutsy.

    Me, I’ll be waiting for at least one other example, one other data point, before I use “gutsy” as anything but mockery for Obama. But each is entitled to his own opinion, and yours obviously differs.

    Beldar (7c0dd5)

  58. ____________________________________________

    This isn’t too off-topic if one considers the guy now in the White House and the French bigwig recently in the news have one thing in common: they’re both of the left, if not ultra-left, and in general are the epitome of limousine liberals. So one runs roughshod over (and is two-faced about) WPA, the other one runs roughshod over hotel employees.

    Also, since left-leaning biases tend to make a person do wacky, foolish things (Hi, Ah-nold!), I suspect the former head of the IMF is guilty as charged. I originally assumed that because he was in the IMF, he therefore was of the right (or at least the EU/European right) and certainly wouldn’t be a socialist. IOW — and overlooking the existence of ultra-rich, ultra-leftists like George Soros, etc — I thought a socialist being in the IMF would be analogous to a Denny’s fry-order cook managing the kitchen of a 3-star French restaurant. D’oh! My bad.

    Foxnews.com:

    The rape charges against former IMF Chief Dominique Strauss-Kahn are headline news across the world, but as Strauss-Kahn prepares for what could be a lengthy legal battle, France is preparing for a 2012 presidential election — suddenly without the leading challenger to President Nicolas Sarkozy.

    Strauss-Kahn, a prominent member of the Socialist Party in France, was predicted to be his party’s candidate in 2012 and would have faced off against Sarkozy and his UMP party. Sarkozy, who has been floundering in polls, has been seen as a weak and ineffective president… But with Strauss-Kahn almost certainly out of the 2012 race, Sarkozy’s biggest challenge could come from Marine Le Pen, a candidate known for her nationalistic and anti-Muslim views.

    [T]he loss of Strauss-Kahn doesn’t really hurt the socialists in the latest polls. In three possible matchups [involving 3 leftist politicians], only [Segolene] Royal [who lost to Sarkozy in the last election] gets a lower percentage than Sarkozy, with [the 2 other leftists] a full seven to 10 points above Sarkozy.

    ^ I should have known that Strauss-Kahn was a liberal (or ultra-liberal), since opinion surveys in France indicate a huge percentage of its people believe he’s the victim of a conspiracy or frameup. IOW, an example of the OJ-not-guilty, Bill-Clinton-AOK Syndrome, which is an illness that affects many folks on the left.

    Mark (411533)

  59. Strangely, even if the War Powers Act is unconstitutional, that only means that the president’s authority to commit troops is even MORE constricted, not less. So the scope of the debate is between 60 days and no days at all without congressional authorization. But because there is some debate about the authority of the WPA, the mainstream media behaves as if the entire thing is up in the air.

    OTOH, if I understand the WPA correctly, he must withdraw the troops within 30 days after that 60 day limit. Correct? If that’s so, then he has another month before he’s technically broken the law.

    And in light of that, would it be appropriate to begin talking about impeachment if the president so openly defies the congress?

    Gesundheit (d7ea47)

  60. Comment by Beldar — 5/21/2011 @ 11:13 am

    Gutsy?

    Well, I understand that he tin-cupped an obvious lay-up his last round of golf on The Vineyard, and got a Picket Fence for his challenge of the Gods of Golf.

    AD-RtR/OS! (283024)

  61. The War Powers Act is a stupid law, much in the same manner as the FISA act, it circumscribes the rightful use of executive authority, regardless the blatant hypocrisy of the Obama administration, is breathtaking, as is any significant critique from
    the ‘usual suspects’

    ian cormac (72470d)

  62. Dustin (#54): The War Powers Resolution can be complied with even without ever saying its name. Obama’s letter from yesterday afternoon, for example, nowhere references 50 U.S.C. §§ 1541-1548, but it’s no coincidence that the letter was sent on the same day that section 1544(b)’s 60-day period expired. I believe that in this respect, that letter is fairly typical of what previous administrations have done while attempting to comply without admitting or implying any need to comply.

    Obama’s March 21 letter to Congress did include a specific reference to the Resolution at its very end, but linked to an assertion of presidential authority:

    For these purposes, I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.

    I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action.

    “Consistent with” is a carefully chosen qualifier, intended to acknowledge the Resolution without implying or conceding its binding authority. I have no particular fault to find with that, and prefer its honesty to the kabuki show of pretending the Resolution isn’t on the books.

    Yesterday’s letter, though, isn’t actually even in compliance with anything in the Resolution. Rather, it’s a pathetic argument that might excuse non-compliance, and it includes (finally) a plea for Congress to give retroactive blessing.

    In general, I’m content for the constitutionality of the Resolution to remain a matter of dispute, of continuing to-and-fro, push and push-back, between congressional and administrative branches without involving the judiciary. There are very good reasons why this hasn’t been litigated, and indeed, the whole system of checks and balances depends (counter-intuitively but undeniably) on some of its vague presumptions that never get tested. (To paraphrase Stalin’s comment about the Pope, “How many divisions does the Supreme Court command?”)

    Obama could have mounted a serious, sustained, but quiet effort through bipartisan proxies in Congress to get a resolution passed that would bless what’s been done so far well before the 60-day deadline expired. He’s only doing that just now. Friends and neighbors, that delay is legal malpractice on behalf of those advising and representing the Executive. It may not turn out to be consequential malpractice — Obama may still get his retroactive blessing, which would moot the controversy as a practical matter — but it’s stumbling into a constitutional showdown, one that presents a relatively bad set of facts (from the Executive’s point of view) from which to establish a binding, precedential resolution of the Resolution’s constitutionality. And it’s inexcusable because the Administration damn well knew in March that this wasn’t going to be done by May 20.

    Beldar (7c0dd5)

  63. No, Beldar, they thought back then that their vigourous sprinkling of fairy-dust on the problem would make it all go away, courtesy of their willing enablers in the media who would stop talking about it.
    How were they to know that those damn Libyans would start/keep killing each other on the nightly news – the ingrates!

    AD-RtR/OS! (283024)

  64. Gesundheit (#58), I’m not sure what 30-day extension you have in mind. Per 50 U.S.C. § 1543(a), the clock started on March 19 when “United States Armed Forces [were] introduced … (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” Per 50 U.S.C. § 1544(b), “Within sixty calendar days after [that trigger,] the President shall terminate any use of United States Armed Forces” unless Congress has since declared war or otherwise approved, granted an extension of the 60 days, or we’re in such civic disaster that communications are impossible. “Shall terminate” is a strong and unambiguous formulation — if it’s constitutional (which, again, I think it’s not, and I don’t agree with Aaron’s view that the Resolution gives the POTUS power greater than his inherent constitutional authority).

    Beldar (7c0dd5)

  65. AD-RtR/OS! (#62): Yup, you’ve caught me in the mistake of presuming rationality on the part of the Obama Administration, despite all evidence to the contrary. I’m guilty as charged.

    Beldar (7c0dd5)

  66. Beldar

    the 30 day extension is here. http://www.law.cornell.edu/uscode/50/usc_sec_50_00001544—-000-.html

    It only applies if the US is actually under attack. which clearly doesn’t apply here.

    Aaron Worthing (73a7ea)

  67. Falling Fig Foliage Fuels Funding Fight

    happyfeet (3c92a1)

  68. Gesundheit (#58): I wasn’t completely accurate in my paraphrase of the provisions of section 1544(b)(3). The POTUS can indeed grant himself one 30-day extension, but only if Congress is “physically unable to meet as a result of an armed attack upon the United States.”

    If instead the statute applied to a Congress that’s “generally unable to get a damn bit of productive work done because of hyper-partisanship on the part of a Democratic Party that has run out of ideas and is now just gritting its teeth, hunkering down, and demagoguing for all its worth until November 2012,” then Obama could perhaps give himself another 30 days. Perhaps the Administration will argue that “meet” really means “reach a decision,” and that Congress’ semi-paralysis is still due, somehow, to 9/11.

    Beldar (7c0dd5)

  69. Aaron (#65), we crossed comments but agree about the 30-day extension’s inapplicability.

    Beldar (7c0dd5)

  70. I’m confident Aaron understood this already, but I ought to also confirm very explicitly, for everyone, that I agree with Aaron’s basic conclusion in this post about the significance of the expiration of the 60-day period. Even the president’s letter yesterday isn’t adequate to paste the fig leaf back on.

    Beldar (7c0dd5)

  71. And as I’ve explained at greater length in updates on my blog, which I’m relentlessly link-whoring for a second time in these comments, I think Obama’s letter actually makes things worse because it’s factually so ridiculous on its face and, as a legal matter, it wouldn’t excuse non-compliance in any event.

    Beldar (7c0dd5)

  72. Beldar and Aaron, thanks for the clarification. I read too many comments about things without reading the original source material. My impression was that the law allowed for 30 days to achieve the withdrawal.

    Hey, maybe there’s a pony hidden in this pile. Maybe it’ll go to court and the whole stinking mess will finally be ruled unconstitutional.

    Sorry. I guess I just got to dreaming there.

    Gesundheit (d7ea47)

  73. “Since April 4,” the president wrote, “U.S. participation has consisted of: (1) non-kinetic support to the NATO-led operation…”

    Heh. I guess if Obama conducts a motionless (non-kinetic) war, then he doesn’t need a motion from Congress. If only he’d conduct a non-kinetic domestic policy as well. But apparently Obama is a firm believer in telekinesis. Get on television and wave your arms until everyone lets you do what you want.

    Gesundheit (d7ea47)

  74. There’s a whole lot of original source material that is entirely comprehensible by lay readers with a few hyperlinks and a bit of commentary to point them in the right direction. Patterico, Aaron & I all view that as an opportunity we have and, perhaps, even a responsibility we owe as lawyer-bloggers.

    Beldar (7c0dd5)

  75. I love it.

    President Obama wrote a letter to congressional leaders this afternoon suggesting that the role is now so “limited” he does not need to seek congressional approval.

    VietNam was a “limited” war.

    Nuff said.

    Neo (95d77c)

  76. “I worked for a lot of these guys [eight presidents], and this is one of the most courageous calls, decisions that I think I’ve ever seen a president make.”

    Yeah, it would be a great decision, if and only if, we actually destroy K-Daffy’s government…only Obama is just screwing around, and not getting the job done.

    All he’s doing is pissing off guys that already hate our guts, and that are perfectly willing to blow up American airliners when they’re mad at us.

    Mark, my words….Americans are going to die in terrorist attacks, because Barack Obama is a feckless moron, who is just playing at being president. All he’s done, so far, is provoke a Libyan government that has already murdered Americans to get even with us in the past.

    At this point K-Daffy MUST be destroyed…or we’re simply begging to get an ass kicking.

    There’s also the lesser issue of presidents, be they good presidents, or piles of shit, like Obama, deciding to fight wars without consulting Congress, in violation of the law. That sets a bad precedent, unless you want to be ruled by a dictator (in this case, a halfwit dictator).

    The only reason NOT to impeach this loser is that all you would do, thanks to the way impeachments work, is replace him with another Democrat moron.

    What we should do is to get rid of all Democrats (by hook or by crook), get some decent leadership, that actually cares about American lives, and then go after countries that have attacked us with everything we’ve got, after making Congress take a vote on it and declare war, first thing, like the rulebook says.

    Dave Surls (1ffb6b)

  77. Yeah, those who see everything as a giant dialectical spiral will say we’ve done a full twist from Kennedy sending Green Berets to help Diem’s government all the way through the Weinburger and Powell Doctrines, and then back again.

    But that’s just twisted.

    Beldar (7c0dd5)

  78. Beldar, thanks for the series of comments on this here and at your blog.

    Dustin (c16eca)

  79. “Consistent with” is a carefully chosen qualifier, intended to acknowledge the Resolution without implying or conceding its binding authority.

    True. I was just reacting to the comment that no president has ever acknowledged the act.

    And as far as I’m concerned, the WPA is constitutional, and without abiding by it, Obama is seriously abusing his authority in one of the worst ways I can imagine.

    Dustin (c16eca)

  80. Dustin, you’re kind, but I’m following this and writing about it mostly for my own considerable amusement. This falls into the category of “unforced, imbecilic, spectacularly ironic mistakes of Barack Obama, progressive superhero” — and the intrinsic amusement value is just enormous if one likes that kind of stuff, which I certainly do.

    Beldar (7c0dd5)

  81. WPA is “considered unconstitutional” by most legal scholars, but not by any court of competent jurisdiction. Until it is repealed, stayed, or overturned, it is the law of the land, however flawed.

    Not if those scholars are right, it isn’t. A law that contradicts the constitution is by definition invalid; it doesn’t require a court to make it so. If it were the law of the land, then no court could overturn it.

    You ought to have written: “Until a court either upholds it or strikes it down we won’t know whether it’s the law of the land.”

    Milhouse (3eb4bf)

  82. I don’t see how the congress making a law about how the executive is granted permission to conduct a limited type of war could be unconstitutional.

    It’s for the most serious emergencies, so the government’s interest is paramount.

    We live in a world where the President needs to be able to order defenses in a short amount of time, or if we are unable to convene congress at all because of an attack. He can do so constitutionally because of the WPA.

    And it’s the courts that decide what the law is, in our society. Until a court rules this unconstitutional, it is legally constitutional. Obama doesn’t get to simply pick and chose new theories on what the law is, based on whatever he wants to do today. His own prior comments really damn him as being insincere.

    Dustin (c16eca)

  83. And it’s the courts that decide what the law is, in our society. Until a court rules this unconstitutional, it is legally constitutional.

    Not true. The president is entitled to his own view of the constitution.

    Milhouse (a8afa6)

  84. This seems to me to be just common sense, but on matters of war, the enemy gets to vote.

    Congress only has jurisdiction over the behavior of the US Federal Government, not over our enemies. Wars can be started by either side, so Congressional authority to declare war only controls initiating a war by the US.

    If a state of war is initiated by acts of war against us, as CiC the President has full authority to respond. Absent that, the President needs congressional approval to initiate war.

    BTW, in 1848 the US House of Representatives censured President James Polk for starting the Mexican-American War.

    LarryD (feb78b)

  85. Just so we are clear, that was Willie the racist hilljack commenting under my name, above. He is so envious and jealous of me that he wants to be me, and has posted hundreds of comments under my name. It is sad. And quite pathetic.

    JD (318f81)

  86. Congress is paying attention now, and getting a little bit persnickity at this blatant (it just doesn’t do to rub Congress’ nose in something this baldly) usurpation of Constitutionally-assigned (and Congressionally-delegated, but only up-to-a-point!) powers. And, in its glacial, ponderous way, is signalling that it’ll have to get around to doing something about it if some political figleaf isn’t provided by the president.

    I’ve quoted you and linked to you here.

    Consul-At-Arms (8cba54)


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