[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
Well, first, I found myself completely outclassed by the argument by Mike Ramsey over at The Originalism Blog. We arrive at just about the same conclusion, but bluntly he just has a deeper understanding of the material. Here’s one choice paragraph to give you a taste:
The answer is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities. John Locke’s classic Two Treatises of Government from the late 17th century referred to “declar[ing] by word or action.” Blackstone and Vattel, two of the 18th century legal writers most influential in America, also used “declare” in this way. Vattel wrote: “When one nation takes up arms against another, she from that moment declares herself an enemy to all individuals of the latter.” Johnson’s dictionary gave as one definition of “declare” to “shew in open view” – which, applied to warfare, would obviously encompass military attacks. (References are found in my Chicago Law Review article, Part III; for a more comprehensive account, see this outstanding article by Saikrishna Prakash). Thus in 18th century terms initiating an attack was as much “to declare war” as was making a formal announcement; Congress’ Article I, Section 8 power is not narrowly about issuing formal announcements, but broadly about authorizing the sorts of actions that begin war.
So go read it, if you are inclined.
Meanwhile Gallop reports that 47% of Americans approve of the mission, 37% disapprove and 16% have no opinion. Of course the problem with those numbers is that some people’s responses are more complicated than that. For instance, I wanted the president to do this, but legally, by asking for an authorization to use force first. So I consider this war illegal, but the ultimate goal to be desirable (if the President actually wants to get rid of Qdaffy). Still its worth noting that the Gallop report also says that the approval rating “is lower than what Gallup has found when asking about approval of other U.S. military campaigns in the past four decades.” Certainly as a political matter, the sudden and badly explained decision to go to war appears to be hurting him—a reason to follow the Constitution, if the fact that it is the Constitution isn’t reason enough.
But of course the President is trying to avoid explaining himself to the American people:
President Barack Obama is resisting pressure to deliver an Oval Office speech explaining his policy on Libya — in part, because he doesn’t want to equate what he regards as a smaller, time-limited mission with the wars in Iraq and Afghanistan.
Which is stupid. I remember when Reagan dropped bombs on Gdaffy, a one off affair, and Reagan was on that night, explaining why he decided to drop them. Here, take a gander:
That’s what Presidents do even if it isn’t a full scale war. Seriously, who is advising this guy? And is he listening to their advice?
And is there any hope for some real blowback over this, at least resulting in the censure resolution I am advocating for? Well, consider this. First that the LA Times reports that there is a “Constitutional Firestorm” over the thing, discussing in part Boehner’s letter to the President. And George Stephanopoulos writes:
Here’s an indication of how angry are Congressional Democrats that President Obama put the U.S. in the mix in Libya without consulting them:
A top Congressional confidant of House Minority Leader Nancy Pelosi, California Democrat Rep. George Miller, suggested this morning that President Obama acted outside his Presidential authority by engaging in military action without consulting Congress.
An MSNBC anchor asked Miller if he thinks the President acted with proper legal authority in taking military action.
“Well, I’m one of those people who believe that when you’re not defending the shores of the United State, you have an obligation to come to the Congress and ask for permission. So no, I don’t agree with that,” Miller said. He later said he thinks Obama would have gotten permission from Congress.
Of course, the White House responded angrily to all that pushback:
The White House fired back Thursday at criticism over the Libya military mission, saying lawmakers were briefed and consulted at length before air strikes began.
White House press secretary Jay Carney read off a list of dates when administration officials briefed members or testified on the Hill during an off-camera briefing held the day after President Obama returned from a trip to South and Central America.
The press secretary also said the U.S. had to act quickly when air strikes began Saturday because further delay would have “cost lives.”
Cost lives? Are you fraking kidding me? You have sat on your hands, Mr. President, for over a month about this, so don’t pretend to me that this was such a sudden emergency.
And Barney Frank is not buying this line about consultations, either:
But in an interview with POLITICO, Frank, the liberal congressman from Massachusetts, said “consultations are no substitute” for seeking Congress’s permission to go to war.
“Consultations, schmonsultations,” Frank said.
Frank also didn’t buy Carney’s argument on Thursday that Obama couldn’t ask Congress to go to war because doing so would have given Muammar Qadhafi time to slaughter Libyans in Benghazi. “They should have asked earlier,” Frank argued, also suggesting that publicizing a request for war could have even spooked Qadhafi.
Still, Frank said, Obama can make some amends by asking Congress to approve further attacks in Libya before authorizing them. “I wish he had done it differently, and it’s not too late for him to do it differently,” he said.
Meanwhile the euphemisms continue, including my unfavorite:
U.S. officials avoid describing the operation as a war. White house press secretary Jay Carney said it was “a time-limited, scope-limited military action.“
(emphasis added.) Hey, can we come up with a power-limited, scope-limited President? Please?
[Posted and authored by Aaron Worthing.]