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Libya and Executive Power

[ 42 ] March 21, 2011 |

Grover Cleveland asks what he asked in our comments, namely what we should make about the lack of congressional involvement in the decision to attack Libya. A few points:

  • Obama’s argument as a senator that his actions as president would violate the Constitution is a perfectly plausible reading of the text, but (as he must have known) not a plausible account of recent practices.   There’s certainly nothing unusual about these actions.
  • The same is true, only more so, about Richard Lugar’s claim that establishing a no-fly zone requires a declaration of war.   In the abstract, it’s perfectly plausible.   As a description of contemporary practice, it’s an anachronism, and indeed going back to Jefferson’s attacks on pirates I don’t think this has ever been an accurate description of practices.   Certainly, given that even Vietnam and the second Iraq war didn’t involve declarations of war, it’s not really tenable to say that one was needed here.   Under current practices, the AUMF George W. Bush obtained prior to the Iraq disaster was constitutionally sufficient, and for short-term smaller-scale conflict congressional approval probably isn’t required.
  • As for why power has migrated so much towards the executive branch, I think Matt gets it right: it’s how a majority of members of Congress generally wants it.   Posner and Vermeule have a good extended argument about this, but essentially attempts to assert more congressional authority (such as the War Powers Act) will work only to the extent that Congress actually asserts its authority, and there’s no indication that it will.
  • As to whether this is a good thing…I’m inclined to agree that it isn’t.   Once you get outside of actual direct threats to American security (as opposed to oblique, longer-term threats to American national interests) the claim that the dispatch and secrecy inherent to the executive branch is suitable for defense decision-making strikes me as highly dubious.    The decision-making under the president’s contemporary war-making powers has been rife with extremely costly false positives, and it’s all-too-likely that Libya will be another one.

Comments (42)

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  1. Malaclypse says:

    The same is true, only more so, about Richard Lugar’s claim that establishing a no-fly zone requires a declaration of war.

    Not just Lugar.

  2. Joe says:

    I don’t see that “claim” in the Lugar link. His stance sounds more pragmatic:

    “But given the costs of a no-fly zone, the risks that our involvement would escalate, the uncertain reception in the Arab street of any American intervention in an Arab country, the potential for civilian deaths, the unpredictability of the endgame in a civil war, the strains on our military, and other factors, I am doubtful that U.S. interests would be served by imposing a no-fly zone over Libya.”

    Lugar pointed to the fact that 145,000 American troops are currently deployed in Iraq and Afghanistan, and that the annual U.S. budget deficit is already around $1.5 trillion.

    “In this broad context, if the Obama administration decides to impose a no-fly zone or take other significant military action in Libya, I believe it should first seek a Congressional debate on a declaration of war under Article I, Section 8 of the Constitution,” Lugar said.

    Don’t see that (w/o more) as the Kucinch “impeachable offense” approach. The use of “should” over “must” suggests as much.

  3. joe from Lowell says:

    As a description of contemporary practice, it’s an anachronism, and indeed going back to Jefferson’s attacks on pirates I don’t think this has ever been an accurate description of practices.

    My understanding, and correctly me if I’m wrong, is that the President was traditionally allowed to use the Navy (including the Marines, understanding their role as it was when the maritime concept was core to their identity and purpose), while using the Army (putting ground forces into a country for anything longer than a ship-based raid) required Congress. A mission involving air and naval power, which explicitly forbids an occupying army, would seem to be more like the old naval operations than like the Spanish-American War or WW1.

    Certainly, given that even Vietnam and the second Iraq war didn’t involve declarations of war, it’s not really tenable to say that one was needed here.

    Perhaps I’m reading too much into it, but I think Lugar is making a point about getting Congressional approval vs. the president acting alone, not a point about AUMFs vs. Declarations of War.

    • Scott Lemieux says:

      Perhaps, but that’s not the language he used. At any rate, as I said I think that my points apply either way.

      • joe from Lowell says:

        No, it’s not the language he used.

        I’m basing this reading on his support for AUMFs in the past, as opposed to war resolutions.

        I think your point, about when Congressional action has been required vs. not, stands either way, too.

  4. MobiusKlein says:

    At a much more basic level, Obama has “The Football”.
    The ability to launch nuclear missiles invested in him dwarfs the Libya war.

    When Congress deauthorizes The Football, we’ll talk.

  5. Lancelot Link says:

    Unless I’m mistaken, the last time Congress declared war it was against Japan.

    • Steve says:

      The U.S. declared war on Germany and Italy three days later.

    • ploeg says:

      The US was in a de facto naval war with both Japan and Germany, so Congress didn’t have a whole lot of choice in the matter. (And the naval war with Germany was at least partially because Roosevelt decided to help escort convoys across the Atlantic.)

      The latest time that Congress declared war, and had a genuine choice in the matter, was when they declared war against Germany in 1917.

  6. joe from Lowell says:

    On the Constitutionality of AUMFs vs. War Declarations:

    If Congress can pass the Clean Air Act, telling the executive branch “You decide whether something is a pollutant, whether we should limit it, and what the limit should be” – that is, if they can delegate their power to regulate interstate commerce – then they can pass an AUMF saying “You decide whether, and how, we should go to war with a certain country or non-state actor.”

    • Joe says:

      Congress there set forth broad rules and agencies (with extended procedures in place, including things like comment periods and so forth) fill in details. They are not “delegating their power” there unless any law that doesn’t cover every specific possibility does that.

      Putting aside “delegate,” how does the AUMF compare to rule making? Do they follow the same procedures? And, since in that case agencies make the final call w/o much presidential involvement, should we “delegate” warmaking to subcabinet officials or something?

      The AUMF also is probably more open-ended than your garden variety regulatory law, which are complex entities. Why? In part because in that case, Congress actually spend a long time legislating the matter. This aside from the fact that war is not the same thing as regulating some pollutant in some ways.

      • Joe says:

        Another thing is that courts often interpret agency determinations. Military issues of the sort here generally are deemed political questions. One more reason “delegation” (if delegation it is) is troubling, given it amounts to too much unilateral power.

        • joe from Lowell says:

          Now that’s an interesting argument. I see what you’re saying here.

          I’m not sure if that difference actually controls the question “Can Congress delegate this decision-making power but not that?”

          But I can see how it might.

      • joe from Lowell says:

        Congress there set forth broad rules and agencies (with extended procedures in place, including things like comment periods and so forth) fill in details.

        Details?!? Look at the EPA’s greenhouse gas rules. That’s not a detail; there was literally nothing about greenhouse gases or global warming in the legislation. The EPA can decide, all by itself, that a certain thing is a problem, and add whole new classes of pollutants of its own accord. At least AUMFs tell the president who he’s targeting.

        Putting aside “delegate,” how does the AUMF compare to rule making?

        It doesn’t. It compares to LAWmaking, when the law Congress passes includes giving rulemaking authority to the executive. Such a law delegates decision-making authority to the executive, just like an AUMF.

        The AUMF also is probably more open-ended than your garden variety regulatory law, which are complex entities.

        OK. Does that have any relationship to the constitutional question?

        This aside from the fact that war is not the same thing as regulating some pollutant in some ways.

        And alike in other ways – specifically, in the way that Congress outlines a broad goal and authorizes the executive to make decisions not specifically spelled out by Congress to achieve those goals. But I understand they are different in certain ways. Are any of these ways relevant to the constitutional question?

        • Scott Lemieux says:

          Joe is right about this. Congressional delegation in practice gives very wide policy-making discretion to the exectutive.

        • Joe says:

          I disagree that there is “literally nothing about greenhouse gases or global warming” in the legislation. The AUMF provides a few general categories that provides “authority” to invade any number of countries. Rather vague indeed.

          I don’t disagree that modern agency law delegates a lot of authority to the executive. The degree and scope is the debate here. And, the executive has more unilateral power now in the area of military discretion.

          Yes, if it is more ‘open-ended’ and has less detail that is more problematic constitutionally when determining if unconstitutional delegating in occurring. The restraints in agency law are dubious enough sometimes.

          But, there are more restraints (including judicial review while determining if Somalia or whatever is a good bombing spot will be deemed a political question as compared to greenhouse gas enforcement cf. MA v. EPA with MA v. Laird).

          Given war has more effects than some executive made “law” on seatbelts or the like, this is constitutionally troubling.

          • joe from Lowell says:

            Given war has more effects than some executive made “law” on seatbelts or the like, this is constitutionally troubling.

            Your B does not follow form your A.

            Because action A has more effects than action B, action A can’t be delegated but action B can?

            What constitutional doctrine is that?

  7. “Once you get outside of actual direct threats to American security (as opposed to oblique, longer-term threats to American national interests) the claim that the dispatch and secrecy inherent to the executive branch is suitable for defense decision-making strikes me as highly dubious.”

    All the more dubious when, as we should these days, we substitute “corporate” for “national” in this argument. But this is unclear–do you mean that “dispatch and secrecy” matter for defense decision making only when facing an existential threat?

    But I’m far more interested in your thoughts on Congressional surrender of this power to the executive, and I wonder why they would do this.

    Is is because they belong to the same class and share positions of leadership in the global economy with the President? Perhaps they just trust even a President from a different party to protect their interests (national, corporate and personal) in this sector of action — even as they poke him with ideological needles for the way he goes about it.

    • wengler says:

      It’s more than likely that Congressional willingness to defer war powers to the President is guided by the fact that the US has a huge military waiting on the shelf.

      Pre-WWII declaring war actually meant things like raising an army and training it and selling war bonds. Now all they have to do is put the army they already have in the field and steal the teachers’ pensions to pay for the rest.

      • Some Guy says:

        That makes sense. There’s also a pretty broad line between sending ground troops in to take and hold ground, and flying over head and dropping some explosives on things.

      • Perhaps our “on-the-shelf” military establishment guides the behavior of the political class–if, that is, agents have no agency.

        Or perhaps the leaders of the political class–the agents–created an on-the-shelf military that it could use to protect their interests.

        • Holden Pattern says:

          Right. It’s really hard to justify the need for half of federal income taxes to go toward military endeavors at the expense of decent domestic social services and infrastructure if we don’t actually USE the enormous military boondoggle from time to time.

          Also, blowing shit up and killing brown people gives our ruling classes the little death. Somos bien jodidos.

  8. marc sobel says:

    I have been commenting about the ostrich nature of discussions of Libya, including the President’s which do not include the word “oil”.

    For clarity in thinking about Libya, it would be better if we had learned from the Iraq model of discourse. In Iraq, instead of saying “sectarian violence” we should have consistently said “faith based violence”

    Here we should consistently use the phrase “Oil Rich Libya” as in “what we should make about the lack of congressional involvement in the decision to attack Oil Rich Libya” .

    It’s a useful right wing rhetorical strategy as in “wasteful government spending” going back at least to Cato’s carthaga delenda est but I suspect, it was a major element in that rock sucking Demosthenes’ Phillipics

  9. H-Bob says:

    Why has the administration not requested Congressional authorization, at least under the War Powers Act ? While nobody really wants to hear Senator Foghorn Leghorn blathering away, there is a lot of potential for the Republicans to completely embarass themselves under a very intense media spotlight.

  10. rea says:

    Not to engage in vulgar originalism, but the Founders seemed to tolerate an awful lot of combat without a declaration of war–the naval war against France, two wars with the Barbary states, not to mention fighting with various Indian tribes, all without benefit of formal declaration

    • David Kaib says:

      The naval war with France doesn’t help the cause of presidential unilateralism, as Congress passed numerous laws authorizing military action and kept a pretty tight leash on how extensive that war would be, and the SC upheld Congressional power to legislate such limits.

      If I remember correctly, Congress did authorize military action in the First Barbary War, and in the Second, they declared war on the US. Either way, American ships were actually under attack.

      As for Native Americans, historically, the US government didn’t worry too much about Constitutional limitations when the ox being gored wasn’t white people.

    • Davis X. Machina says:

      Maybe the two anti-slave-trade deployments of the US Navy — a no-sail zone? — to the west coast of Africa in the 1820′s and 1840′s, including ground action by detachments of Marines, in concert with the UK, is a better analogue.

  11. [...] so light blogging despite all of the interesting things to discuss.  Indeed, I hope to respond to Scott Lemieux’s sensible commentary on Executive-Legistative Relations and War a.s.a.p., but for now will describe a strange twist on [...]

  12. Incontinentia Buttocks says:

    Not much… but a good deal more than I like McCain or Palin, i.e. kinda the way I felt when I voted for “you” in 2008.

    And probably not that differently from the way I’ll feel when I vote for “you” against whatever nutjob the GOP nominates next year.

  13. joe from Lowell says:

    Love you.

    Love the multilateralism.

    Love the lack of swagger over war.

    Love the backing of indigenous liberation movements.

    Especially love the way you drive the dumbest human beings on the face of the earth so batty.

  14. joe from Lowell says:

    Oh, you’re accountable to your base, all right. But your base loves ya.

    Keep ignoring the Professional Left. They’re base, all right, but they’re not your base.

  15. Brad P. says:

    No kidding.

    W was so cavalier that he turned the rest of the world off of poorly thought out warmaking in distant smaller nations in the name of freedom and other abstract and unreachable goals.

    Its about time we elect someone who can show the world that that is what civilized nations do.

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