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Yoo Better Believe That’s Going Too Far

[ 43 ] March 31, 2011 |

I’ll have a bigger piece about the subject next week, but as I’ve said before, to assert that presidential initiations of military force — whether wise or unwise — violate the Constitution strikes me as being as pointless and anachronistic as claiming that the federal government lacks the power to regulate the national economy. I’m not crazy about the consequences of the de facto constitutional order with respect to presidential war powers, but in Congress continues to delegate warmaking authority to the president I think the issues raised should properly be viewed as policy rather than constitutional questions.

But when it comes to Clinton’s claim that Obama could proceed with attacks on Libya in the face of congressional opposition, though, I get off the bus. The Constitution shares warmaking powers between the president and Congress. If Congress wants to delegate its powers to the president — whether actively or even through acquiescence — that’s one thing. But to claim that that the president can simply defy valid statutory restrictions is, as Adam says, lawless. Unfortunately, the Obama administration’s endorsement of Yoovian conceptions of executive power can no longer be considered surprising, but it’s still dismaying.

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  1. charles pierce says:

    Scott –
    Question, then — what if Congress were to make a concerted effort to re-establish its control over the war powers? Would a president be constitutionally viable in his effort to maintain what has become the status quo?

    • Scott Lemieux says:

      It’s hard to say. Partly it would depend on the courts — where the history isn’t encouraging — and partly it would depend on whether Congress was serious enough to play real hardball, i.e. to cut off funding.

      • charles pierce says:

        Assuming, for the moment, that we lay aside partisan volleyball, this puts us back in Boland Amendment territory, doesn’t it? I know there were a zillion reasons proposed by Serious People as to why we couldn’t impeach Reagan over Iran-Contra, but few of them had anything to do with the law. There was a law. He broke it. He got caught. What Clinton is suggesting is beyond the beyond. Hell, I’D impeach his ass over that.

        • Joe says:

          It’s noise w/o them actually passing such a limit here, which Obama could veto, so they’d have to override it. Not seeing that happening.

          • Anderson says:

            Interesting point — I never paused to consider that it actually takes 2/3 of both houses to check the President’s warlord powers.

            I wonder if that ever clicked in Madison’s brain?

            • Paul Campos says:

              That’s why presidents weren’t given the power to wage war without congressional authorization in the first place. It’s remarkable to what extent explicit constitutional provisions are simply ignored when the political process finds it convenient to do so.

              • Scott Lemieux says:

                Right. Madison knew what he was doing — it’s just that Congress refuses to exercise its ex ante powers and once the president has the initiative checking his war powers is enormously difficult.

              • Anderson says:

                “Madison” (or whoever) “knew what he was doing,” when premised on the notion that the president won’t violate Article I because, hey looky, it says so right here, is not terribly persuasive evidence of his prudence or perspicacity.

                A Constitutional prohibition is only as good as the answer to “but what if I do?” and the Framers were supposed to be wordly enough to know that.

              • Scott Lemieux says:

                Say what you will about Madison, but he was aware of the limitations of parchment barriers. I really don’t think this is a problem of constitutional design; a unification of executive and legislature, while it has other virtues, certainly wouldn’t alleviate this problem.

              • charles pierce says:

                One point in Madison’s favor is that he is the only president to conduct a war almost completely within the explicit constitutional framework, including the entire Bill of Rights. (Hello, Abe!) When the New Englanders met and started talking about secession, he didn’t round them up.
                OK, the White House got burned, but that wasn’t because Jemmy thought the Constitution meant what it said.

              • John says:

                McKinley and (to a lesser extent) Polk more or less followed the constitutional limitations, didn’t they?

            • John says:

              Not true, I don’t think. Congress has the power of the purse. All they have to do to check the president’s powers in this respect is to refuse to pass a bill to fund military operations. Not that that’ll ever happen, of course.

      • The courts won’t touch it, because the ‘political question’ issue gives them an out. I can imagine scenarios where Congress might kick up a fuss, but the institution is poorly designed for this sort of confrontation.

        It’s an interesting failure by the drafters, when you think about it. The idea, as I have always understood it, was to make the President less like a monarch by placing war powers in the more ‘democratic’ or maybe ‘responsive to the electorate’ branch. That branch wants no part of it, so it has essentially conceded the power to the executive. I’d love to hear what Scalia or John Boehner make of this.

    • Jon H says:

      I suppose they could start by passing relevant legislation, rather than just asserting control.

      That would probably help their case, as opposed to mere assertion, which could be taken as empty political grandstanding.

      • Scott Lemieux says:

        Right. This will almost certainly remain hypothetical.

      • Paul Campos says:

        The whole point of giving Congress the unilateral power to declare war is that Congress doesn’t have to pass legislation (over a presidential veto) to stop a president from waging a war.

        I realize this basic constitutional requirement has been largely ignored for several decades now, but as Scott says when you get to the point of actually inverting the constitutional structure, as opposed to merely ignoring it, that’s a bit much.

  2. DrDick says:

    But when it comes to Clinton’s claim that Obama could proceed with attacks on Libya in the face of congressional opposition

    Anybody still want to claim how much better off we would be if she had won the election? Obama has certainly turned out to be somewhat more centrist/corporate than I expected, but Clinton is exactly what I thought.

  3. wengler says:

    Hey Republicans obsessed with budget cutting…looks like the door has been left wide open for you.

    What’s that? You can’t cut any part of the budget that directly kills people?

    • Hogan says:

      But that’s the only legitimate function of government! Helping people is for losers and commies.

      • Holden Pattern says:

        It’s also the only legitimate form of Keynesianism — gummint spending can’t create jobs, but don’t you dare shut down that weapons program in my district!

        War really is a racket, baby.

  4. wengler says:

    Actually I do have a serious question.

    What is the amount of money that Defense has in reserve if the federal government shuts down on April 8? Or will both parties just pass continuing resolutions to fund the military only?

    • Furious Jorge says:

      Actually, *not* funding the military is probably the way the GOP would want to go, if only to put pressure on Obama to cave in to them by appealing to Americans’ fetish with The Troops.

      This is, IIRC, exactly what happened in 1995 (I definitely remember being told not to expect a paycheck for a while, but that I would still need to come in and work regardless. When you sign on the dotted line, Uncle Sam *owns* your ass, lock stock and barrel). Not that it worked, of course, but the GOP doesn’t really learn from its mistakes all that well.

      (And please forgive the mixed metaphors.)

  5. Anderson says:

    What’s wild is that this is even an open question, legally speaking.

    Jackson’s Youngstown concurrence:

    Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may, in fact, exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture. I do not, however, find it necessary or appropriate to consider the legal status of the Korean enterprise to discountenance argument based on it.

    But then:

    We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society.

    And as we are sometimes reminded, that is “just” a concurrence.

  6. joe from Lowell says:

    When discussing its rationale for the use of war powers – for instance, in its filings about detainees, or in putting Al-awlaki on the terrorist list – this administration has broken from the Bush administration in citing the September 2001 AUMF, rather than inherent C-in-C powers, as the basis of its authority.

    So, this statement is surprising.

    I’d like to see more about Hillary’s, and the administration’s, thinking here. Are they now adopted a view of inherent executive authority that they’d previously eschewed? Are they looking at the existing Congressionally-approved power in the UN Participation Act, War Powers Resolution, or Senate adoption of the NATO treaty as remaining in effect unless they’re repealed?

    None of the stories I’ve seen give a quote or discuss what, if any, reasoning she gave.

    • Pithlord says:

      I imagine it is along the lines of, “Arbitrary power is good as long as it is used by nice people like us.”

      • joe from Lowell says:

        ….an argument which completely fails to account for the change in policy I discussed my first paragraph.

        Unless you can come up with some other reason why they spent 2+ years arguing exactly the opposite.

        • Joe says:

          Push comes to shove, when did their change in policy actually restrain them? They didn’t rest on executive/Art II. power alone. But, said their actions, including targeting citizens abroad, were authorized by international and domestic law. Push comes to shove, they upheld secrecy policies, including challenging standing to sue.

          The statement here is curious since before Congress actually does anything (the betting man says they won’t, and even then Obama can veto), why propose hypotheticals that only make you look bad? On that level, it’s curious, unless it’s them being a bit too cocky.

          • joe from Lowell says:

            If by “push comes to shove,” you’re saying you don’t care much about the constitutional doctrines, just their actions, ok. For my part, I’m interested in the constitutional doctrines as a subject in their own right.

            Also, I don’t think it was Hillary proposing the hypothetical. I think one of the Congressmen proposed the hypothetical and she answered his question.

            • Joe says:

              No, you are assuming that I don’t care. What I’m “saying” (or asking) is how their actions have really restrained their desired actions.

              I’m sure they have in some fashion, but it’s a bit hard to say given their actions. I care about doctrines, but also care about actions, which matter when looking at doctrines anyways.

              If she was answering a question, fine, but since it didn’t happen yet, she was still proposing a hypothetical action in a fashion. She could have hedged. No rule could be absolute (some emergency could pop up etc.). It was still a curious blunt statement.

  7. Still Awesomely Evil, But No Longer Bragging About It In Polite Company DrDick says:

    Pretty much.

  8. David Kaib says:

    It strikes me that the Admin had already tipped its hand about its views on executive power, in the letter the White House sent to Congress on March 21.

    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.

    • joe from Lowell says:

      pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.

      I didn’t read that as being about war powers. You’ll notice the difference from the language Bush used to use in similar statements, when he was always citing “national security,” not “foreign relations,” and using “Commander in Chief” on its own.

      I think that statement is a reference to joining in a UN and NATO mission, because the term “foreign relations” isn’t commonly used to refer to a military mission as such.

      • David Kaib says:

        In the context of executive power, foreign relations has often been juxtaposed with domestic relations, with war falling on the side of the former. It doesn’t refer to a military mission – it covers that and much more. Bush II also relied on this claim (the sole organ theory, which has its origins in the Curtiss-Wright case). Either way, the point is that it relies on inherent executive power.

        Here’s Greenwald quoting from one of the Bush memos:

        To advance this defense, Bush lawyers hailed what they called “the President’s role as sole organ for the Nation in foreign affairs“; said the President’s war power inherently as “Commander-in-Chief” under Article II “includes all that is necessary and proper for carrying these powers into execution”; favorably cited an argument made by Attorney General Black during the Civil War that statutes restricting the President’s actions relating to war “could probably be read as simply providing ‘a recommendation’ that the President could decline to follow at his discretion“; and, as a result of all that, Congress “was pressing or even exceeding constitutional limits” when it attempted to regulate how the President could eavesdrop on Americans. As a result, the Bush memo argued, the President had the power to ignore the law because FISA, to the extent it purported to restrict the President’s war powers, “would be unconstitutional as applied in the context of this Congressionally authorized armed conflict.”

        In addition, any reference to Commander in Chief is about war powers.

        • joe from Lowell says:

          In the context of executive power, foreign relations has often been juxtaposed with domestic relations, with war falling on the side of the former.

          I think you’re talking about domestic vs. foreign affairs, not relations. Indeed, the quote you provide from the Bush administration uses the term “affairs.” I can’t find the word “relations” anywhere in the Bush-era memo.

          Either way, the point is that it relies on inherent executive power.

          Yes, certainly, it does refer to inherent executive power, an in the area of foreign affairs. The question is, which area of foreign affairs are we talking about? Foreign relations, or about national security/war?

          Continues Greenwald, in the next two sentences immediately after where you stopped quoting, As a result, the Bush memo argued, the President had the power to ignore the law because FISA, to the extent it purported to restrict the President’s war powers, “would be unconstitutional as applied in the context of this Congressionally authorized armed conflict.”

          That claim — that the President and he alone possesses all powers relating to war under the “Commander-in-Chief” clause of Article II — became the cornerstone of Bush’s “ideology of lawlessness.”

          And a reading of the memo’s Summary backs Greenwald up. The Bush administration was quite clear in locating its power in the C-in-C/war powers doctrine, and that alone.

          But while Greenwald is, as ever, quite certain of himself as he says the Obama administration was being “just like Bush,” and locating the source of its claim in the same war powers doctrine, he doesn’t provide any language from the administration saying so.

          In addition, any reference to Commander in Chief is about war powers.

          Being C-in-C means more than having war powers. It means executing operations, having responsibilities, etc. Is this use a reference to having constitutional power? Look at the construction of that sentence closely:

          For these purposes, I have directed these actions…pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.

          Pursuant to what? To his constitutional authority. What constitutional authority? His constitutional authority to conduct foreign relations. Notice the lack of parallelism after the word “authority” – to conduct foreign relations and as Commander in Chief and Chief Executive.

          I don’t think “…as Commander in Chief and Chief Executive” follows from “constitutional authority,” but from “I have directed these actions.”

          Read as “I have directed these actions…1) pursuant to my constitutional authority to conduct U.S. foreign relations, 2) and as Commander in Chief and Chief Executive.” He never mentions war powers or national security. What’s more, he’s acting as Chief Executive, but the Chief Executive clause doesn’t provide constitutional authority over national security or war. So should the C-in-C reference be read as an invocation of war powers, when it’s in parallel with the Chief Executive reference?

          I don’t think it’s at all clear that it should be.

  9. [...] points of constitutional grand theory: presidential dominance is the de facto constitutional order. I draw the line at suggestions that the president can just ignore congressional statutes, but if accepted practice means anything [...]

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