Executive Decision

GUEST POST by McKinneyTexas, NOT by Gary Farber

First, thanks to Gary Farber for the kind invitation to guest post.  Initially, I'd begun a sort of semi-reflective, Kumbaya piece but then it occurred to me that my role was to introduce of bit of diversity here at ObWi, to provoke thought from the other side of the spectrum.  So, here it is: your dose of provocation:

One glaring fault of the Left-in-Power is its lack of respect for the constitutional process on that most fundamental question of committing the country to war. 

First, under Clinton and then under Obama, US troops were committed to combat operations overseas when no US vital interest was at stake and certainly no attack on US citizens or interests anywhere was imminent.  Neither commitment was subject to public debate, or more importantly, authorized by congress.

Compare this to the much reviled Bush II administration and its wars in Iraq and Afghanistan. 

Public debate?  Regarding the Authorization for Use of Military Force Against Terrorists (Pub.L. 107-40, 115 Stat. 224, enacted September 18, 2001), which led to troops in Afghanistan, no, not much debate.  The consensus was near-unanimous, coming as it did on the heels of 9-11. 

Iraq?  The Authorization for Use of Military Force Against Iraq Resolution of 2002, (Pub.L. 107-243, 116 Stat. 1498, enacted October 16, 2002, H.J.Res. 114) was a joint resolution passed by the United States Congress in October 2002 as Public Law No: 107-243.  

It followed months of debate and had fairly widespread bipartisan support (yes, I know, we were all misled, etc.; that is not the point of this piece). 

War is a big deal, period.  We can argue whether the First Amendment free speech reaches corporations or whether abortion is or is not within the scope of constitutional protection, but what we can't argue is whether it is Congress or the President who gets to start a war short of immediate self defense. 

Two successive Democratic administrations have openly flouted fundamental constitutional principles, yet where is the outrage on the left?  Sure, Kucinich got frisky, but he's an outlier.

The left prides itself on adherence to constitutional principle, yet those few voices I hear aren't very loud and there's very little resonance.  Bush's military actions, on the other hand, were completely within the law. (I'm not talking about Guantanamo or Abu Graib, I'm talking about the military aspects of invading Afghanistan and Iraq.)  Why isn't Bush getting credit and why aren't Clinton/Obama getting slammed? 

As a personal aside, whacking a guy like Khadafi is not a bad thing, at least in theory.  I felt that way about Saddam Hussein.  At the time, it seemed to me, what is the downside to taking a guy like this out?  Naiveté is a valid mitigating factor once.  Carried on into perpetuity, it gets to be a bit much.  We can't fix every rotten bastard out there without a fundamental overhaul in how we view the world and the amount of standing military we are willing to support indefinitely.  And if we did—which we won't—and even if our reasons for doing so were the purest ever known in history, eventually, we'd all be worse off. Empire is not a good game these days, if it ever was. 

Thanks Gary, again, for the invite. 

GUEST POST by McKinneyTexas, NOT by Gary Farber

Comments

[russell]

No argument on any significant point, including the part about whacking Khadafi at least in theory.

Yeah, I get the part about the UN sanction for jumping in in Libya, but the question as regards domestic debate and consideration stands, IMO.

Kum-ba-ya after all. Although I'm sure others will weigh in.

[Console]

Meh. Congress has implicitly approved war for FIVE successive democratic administrations. The constitutional talk is fundamentally semantics if the checks and balances are intact. We can talk about congressional approval all we want but its all abstract until Congress actually exercises its power over the executive branch.

[Console]

Then there's also the problem of said Congress ratifying treaties with other countries that they want to selectively fulfill...

[russell]

Also: cool post McK, thanks for taking the time to chime in!

[Snarki, child of Loki]

You can argue all day as to what is a "vital interest" and what isn't.

Was Granada? Was Vietnam? Somalia? Lebanon? Kosovo? Haiti in the 1920's?

Until congress grows a pair and starts automatically de-funding war operations when there hasn't been a declaration of war, we'll see the same crap as has been going on for the past century.

Somalia is the one case (that I am aware of) where funding was stopped, by the GOP, so the US pulled out. In hindsight, was that the right result? I'd guess "yes", but it's a guess.

Dems aren't going to pull war funding, so it's up to the GOP. Do it or stop whining.

[Slade the Leveller]

Ignoring Congress when making war is a great bi-partisan tradition. See Grenada and Gulf War I for reference.

As for giving G. Bush credit for following the Constitution, isn't that what he was supposed to do?

[Countme--In]

Thanks MckT.

I agree, pretty much.

In fact, Libya could be Obama's Achilles Heel, oddly enough, considering all of the other forces trying to bring him down.

One point: Constitutional as Iraq may have been, still a sinkhole mistake of blood and treasure.

Among the amazing powers of the Constitution, is it able to detect lies invoked in its name?

Saddam was a murderer, but didn't Iraqi women show up at work in business suits back then?

Also a counterweight to Iran, if anyone still believes in realpolitik.

[Carleton Wu]

First, under Clinton and then under Obama, US troops were committed to combat operations overseas when no US vital interest was at stake and certainly no attack on US citizens or interests anywhere was imminent.

Someone mentioned Grenada. Is there any condemnation forthcoming for that, or his attack on Libya, etc?

But then, I find this entire conversation very odd- many conservatives and some liberals (although not necessarily you) have argued that the CIC clause allows the President to engage in all manner of seemingly prohibited activities, from wiretapping to indefinite detainment of an American citizen detained in a US airport.
That all seems quite a stretch to me. But using the military to engage in military activity surely falls directly within the CIC clause.

Now, there's a question to be asked about when something becomes large enough to qualify for war status. But "combat operations" surely isn't the line. Consider the history of the document- the President in the late 1700s might well be required to react to military circumstances without taking the weeks required to gather Congress. The idea that the country's military would have to remain inactive during that period is not plausible.

So when does it become a war? Id say that's a political question, altho Congress did chip in its two cents with the War Powers Act. As for no US vital interest was at stake- well, everyone's entitled to their opinion. If Obama's is different than yours, then as CIC he gets to make the call I think. After which, Congress can weigh in via the pursue, and the people via the ballot box.

[sapient]

Well, McKinney, Bush's action in Iraq was contrary to international law and the UN Charter, which is tantamount to violating US law since Iraq posed no threat to the United States, and the action wasn't authorized by the Security Council. So, aside from the fact that war was waged under false pretenses, it was also an aggressive unilateral action, and illegal.

In order to attack the legality of Obama's actions, one would have to rebut the legal document defending those actions put out by Obama's Office of Legal Counsel (and so helpfully provided to us by Gary Farber elsewhere on this blog). Merely stating that Obama shouldn't have done it without some formal declaration by Congress ignores the substantial legal justifications provided, as well as over a half century of history, beginning with the Korean "conflict."

The words of the Constitution are, of course, illuminated by case law, statutes, treaties and precedent. As other commenters have noted, Congress has implicitly supported this action by continuing to fund it, and failing to take measures to stop it.

Although public debate is always preferred, there is no mention of "public debate" in the Constitution, and where the circumstances are exigent, and where the President has complied with the War Powers Act, there really isn't a legal problem. If there is, the matter should be taken to a judge, or Congress should otherwise exercise its Constitutional prerogatives.

[Tony P.]

McKinney,

If the invasion of Iraq was not an actual, honest-to-god, no-fooling "war" by any definition the framers of the Constitution could have had in mind, then I don't know what could be. To claim that the "AUMF" was a formal Congressional declaration of war is to make a mockery of constitutional formality.

Now, I recognize you did NOT claim that. You said Dick and Dubya's Excellent Adventure was "completely within the law", which is a different thing. But if you're going to contrast the Left-in-Power with the Right-in-Power on constitutional grounds, then constitutional formalities ought to matter more to you than they seem to do.

--TP

[Gary Farber]

But using the military to engage in military activity surely falls directly within the CIC clause.

The War Powers Resolution of 1973 (50 U.S.C. 1541-1548).

I know you referred to it, Carleton; I'm just putting it there for those unfamiliar.

[Hartmut]

^
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Spam

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As far as dubious constitutionality goes, I agree. But I see no real difference between the parties on that topic. Presidents make war (usually on some crappy little country that from someone's point of view needs to be thrown against the wall to show that the US means (incorporated) business) all the time without much regard for original constitutional intent (and on this topic the intent could not be clearer). There is some bickering in Congress, usually from the opposition party but nothing much comes of it. Presidents don't get impeached for blowing things up unauthorized while on the job (please finish bad pun at will).
I doubt that any modern US president would escape alive, if law and constitution would be followed to the letter (same for a significant number of congressbeings).
Put their backs against the wall and pop goes the weasel.

[liberal japonicus]

McT, just a short note to thank you for posting, and I hope you'll post more. I'm sorry I can't wade in, but real life isn't just calling, it's yanking on my chain.

[sapient]

From the legal memorandum cited above:

"On March 1, 2011, the United States Senate passed by unanimous consent Senate Resolution 85. Among other things, the Resolution “strongly condemn[ed] the gross and systematic violations of human rights in Libya, including violent attacks on protesters demanding democratic reforms,” “call[ed] on Muammar Gadhafi to desist from further violence,” and “urge[d] the United Nations Security Council to take such further action as may be necessary to protect civilians in Libya from attack, including the possible imposition of a no-fly zone over Libyan territory.” S. Res. 85, 112th Cong. §§ 2, 3, 7 (as passed by Senate, Mar. 1, 2011)."

To say that there was no authorization by Congress for supporting an action that the Senate specifically resolved should happen is inaccurate. No, Congress didn't declare war, and didn't pass a law authorizing military action, but the Constitution doesn't specify the specific form through which Congress may exercise its authority.

Here, the Senate, in advance of the action, unanimously resolved to urge the United Nations Security Council to do exactly what it did - which provided the framework for the UN's action (and the participation of the United States). Does McKinney (and other people) contend that the Senate was urging the UN Security Council to act without the enforcing participation of the United States? Of course, the House of Representatives did not pass a resolution, but has not moved to stop funding the operation. The reaction of the Speaker was memorialized in a <letter">http://www.speaker.gov/news/DocumentSingle.aspx?DocumentID=230469">letter to the President. Can this seriously be considered an objection?

In order to call this action illegal, one should discuss what specific authority the Constitution requires by Congress, especially since the 20th Century was the most active military era of United States history, and war was declared only twice, the last time being WWII, almost 70 years ago. One should also discuss the role of the United States as a participant in an international governmental body such as the UN, and its obligations relating to that participation.

[Hartmut]

sapient, I would not even count WW2 since, for a change, it was actually a reaction to a military attack by Japan* and a declaration of war by Germany. Also the US already waged an undeclared war in the North Atlantic. Please, correct me if I am wrong there but I do not think that Roosevelt asked Congress, whether the navy was allowed to conduct ASW in support of Britain beyond anything that could be reasonably construed as US territorial waters or self-defense.

*I leave out the debate about the Japanese note that was intended to be delivered shortly before the attack but came too late due to delays in decoding and typing. Some think that it was a de facto declaration of war, others think it fell one step short. Not that it makes much difference in hindsight.

[Slartibartfast]

Someone mentioned Grenada. Is there any condemnation forthcoming for that, or his attack on Libya, etc?

Grenada: 133 square miles. Population 100,000. Military: none to speak of. Mission: expel foreign invaders oops, I might have to revise that.

Libya: 679,000+ square miles. Population ~6 million. Military: ranked 25th in the world. Mission: you tell me.

I've seen attempts, also, at comparing Libya to the US Revolutionary War. One problem with that comparison is that England had a hellaciously long supply line that was being attacked by our allies. Libya is on their own home turf. One can argue that they can't resupply domestically, but it's not clear that they need to anytime soon.

[Hartmut]

Slartibartfast, now we/you are talking about pragmatism (which btw originally means: the way the bureaucracy of imperial Austria works ;-) )

[bobbyp]

Hey. Wait a darned minute here. Jefferson obtained a Congressional "authorization of force" from Congress to deal with the Barbary pirates. Isn't he considered a Democrat?

But we are now Teh Empire. The consolidation of power in the executive branch with its huge misshapen "Defense Department" has an institutional inertia that strikes this observer as unstoppabble. All the arguments about the legal niceties are smoke and mirrors....partisan pablum.

[McKinneyTexas]

Well, there are several angles here that I'll try to address:

1. Is a Joint Resolution authorizing the use of military force the constitutional equivalent of declaration of war? I think so, since the Constitution does not specify what form Congress' declaration must take. But even still, Congress' war making powers consists of the power "to define and punish . . . offenses against the laws of nations . . . to declare war, to grant letters of Marque and Reprisal". All up, a joint resolution falls somewhere in this somewhat archaic language.

2. Grenada, Libya (Reagan) et al--the constitutional gray area is whether the President can act in emergent circumstances. I think that's what the War Powers act was intended to cover. Whether you call it pretext or burning necessity (not the point of my post, which is limited to constitutional process, not individual case-by-case merit), Grenada was to rescue medical students deemed in peril, Libya was a reprisal for Lockerbie. Panama? Seems out of bounds to me, but there was the alleged imminent threat to our vital interests, i.e. the canal.

3. Defining vital interests--yes, this is pretty much subjective, but not completely so. Further, I specifically note that any threat to our vital interests was not imminent. One could argue otherwise, but I doubt there'd be many takers.

4. Ratification, waiver and estoppel--these are legal terms that sort of mean "you knew about it, you could have done something, you didn't, so now it's your baby too." I suppose the upside of this concept is that it might limit future grandiose but substantive-less resolutions for fear that a president might take them seriously. But, the Constitution doesn't provide for war by estoppel, doesn't provide that Congressional failure to stop a war a president starts ratifies that war and makes it legal and it doesn't provide that failure to defund the military during combat operations initiated by a president waives Congress' right to declare the president's actions illegal.

5. The OLC's Fig Leaf--I guess the spirit of John Yoo lives on. What a bunch of carp.

6. Congress did authorize the first Gulf War. Al Gore voted for it, IIRC, just as an aside.

7. Korea was a bit different. The North initiated the attack, the UN authorized a defense and Congress voted to participate. I'd say the constitutional form was pretty much followed.

8. Gulf of Tonkin Resolution--probably the outer limits in fig leaves, but it was there.

9. Thanks Russell, CMI, LJ and, again, GF.

[sapient]

"5. The OLC's Fig Leaf--I guess the spirit of John Yoo lives on. What a bunch of carp."

What are you talking about here? Why is it "carp" for the office of legal counsel to write a memorandum explaining the legal rationale for an action? If you want to dispute the contents (as I would be happy to do in the case of John Yoo's infamous memorandum), that's a different story. Lawyers routinely write legal memoranda outlining the legal situation in clients' cases. The Executive's legal counsel isn't allowed to do that now?

[Tom Allen]

It's "carp" because the reasoning was so fishy.

[Slartibartfast]

now we/you are talking about pragmatism

No, I'm talking about scale. Surely scale is important, isn't it? I mean, there's a scale difference between the Siege of Leningrad and what's going on in Libya right now, isn't there? That scale difference: important, or not, in your estimation?

But there should be some agreement under what circumstances the President gets to use Executive power to send troops to battle. The Constitution certainly says Congress gets to declare War, but also says that the President is Commander in Chief of the military. War Powers Resolution says that the President can send troops off for 60 days; does that mean the President can use the military for absolutely anything he wants for two months? It sure looks as if it does.

I'd think a better fit with the intentions of the founders would be that the President can and should marshal the military against attacks, current or imminent, against the US. And that if in the course of such defense we elect to declare war against some offending nation, Congress has that power. I think they absolutely did not foresee situations where we might (for instance) elect to stage an invasion of a small island under the guise of rescuing students. Which is kind of an odd excuse; I can see the US being gunshy after Iran, but Grenada != Iran.

Grenada was to rescue medical students deemed in peril

I know that this is the reason given, but I suspect that it's not the real reason.

[Countme--In]

http://www.charlotteobserver.com/2011/04/09/2210138/southern-cannons-aiming-at-fort.html#ixzz1JPN5XpP8

Shouldn't Congress be reenacting the Declaration of War on the Confederacy for this provocation, instead of spending the National Park Service budget on fraternization with the enemy of this country.

Or is Lindsay Graham holding up all Congressional business so his fellow Tea Party Rebs can steal my money to dredge and deepen the Charleston Harbor?

I say blockade and mine it.

And then see if traitor Jim DeMint can walk on water.

[Snarki, child of Loki]

McKTx:"But, the Constitution doesn't provide for war by estoppel, doesn't provide that Congressional failure to stop a war a president starts ratifies that war and makes it legal and it doesn't provide that failure to defund the military during combat operations initiated by a president waives Congress' right to declare the president's actions illegal.

What a run on sentence.

Congress could easily, in passing DOD funding bills, do what it does for many other funding bills, and include restrictions on what the funding can and cannot be used for. And can (as in the CR funding bill) remove previously approved but unspent funding.

Just add a "No funding for invading countries that the US is not currently at war with", for example.

Not including such language is does not give the president carte blanche: the CiC has authority to command the troops, but that authority does not extend to unconstitutional actions.

But what failure to "estoppel" does do is remove your right to have your whining be taken seriously, when you complain "he shouldn't DO that!", and you didn't bother lifting a finger to prevent it.

The previous paragraph applies just as strongly to the left as the right.

[Rob in CT]

Basically agreed, except I don't see it so much as "the Left in power" as "the continued growth of the Imperial Presidency." If two = trend, though, sure.

[McKinneyTexas]

I'd think a better fit with the intentions of the founders would be that the President can and should marshal the military against attacks, current or imminent, against the US.

My take exactly; however, I define the US to include US citizens overseas in near-imminent peril.

But, somewhat OT, where does fulfilling treaty obligations come into play? Supposed N Korea moves south? Must Congress authorize continuing defense at the expiration of 60 days? Or is the treaty with S Korea essentially "pre-approved credit"?

[Hartmut]

Snarki, that was tried on Cheney/Bush. It got the brazen answer that then they would take either money from elsewhere ot they would stop supplying the troops with food and water and the results would be on Congress. Congress surrendered.

[McKinneyTexas]

Congress could easily, in passing DOD funding bills, do what it does for many other funding bills, and include restrictions on what the funding can and cannot be used for. And can (as in the CR funding bill) remove previously approved but unspent funding.

In theory yes, in practice, very, very rarely and only with great difficulty. When a president starts a war, assuming he/she intends to continue prosecuting it, congressional defunding of ongoing combat operations puts the president in a position to hammer congress for 'exposing the troops/not supporting the troops' etc. Essentially, congress gets dragged along.

But, the limited point I was trying to make is that Bush, compared to Clinton in Bosnia and Obama in Libya, followed the constitutional form for both of his wars. Had the positions been reversed, I would rather suspect the left would be considerably more vocal than it is. Some even defend Obama/Clinton. Seems a tough sell to me.

[Ugh]

I guess we have a number of moving parts here:

(1) what does/does not constitute a declaration of war?
(2) what military actions rise to the level of "war" requiring congressional authorization?
(3) is there some sort of exception to congressioanl authorization for emergencies and, if so, when does it apply and for how long? and,
(4) what to do when we have (2) but not (1) or (3)?
(5) How does the war powers act, treaties, UN authorization, etc. affect the above?

Unfortunately, I think unless you draw very bright lines and back them up with real consequences, these days the executive can do basically whatever he (so far) wants.

[Rob in CT]

I don't think anyone here would dispute that various talking heads, opinion writers, etc. would be taking a different line if this was a GOP President. Basically, the Liberals would be screaming about violating the Consititution and the Conservatives would be praising POTUS' strong, muscular, brave defense of democracy, human rights and baby Jesus.

Partisanship, baby, it's what's for dinner.

That said, I don't think it fits very well with most of the posters at this site. But then I'm a liberal who finds himself in near-total agreement with, fer instance, Daniel Larison. My sense is that other lefties and liberals here, while they might not read Larison, read Greenwald (who has been absolutely scathing, pulling no punches for the Team Blue President) or others who have hardly shied away from criticising "their guy" because he has a D next to his name.

[Ugh]

congressional defunding of ongoing combat operations puts the president in a position to hammer congress for 'exposing the troops/not supporting the troops' etc.

This is undoubtedly true, but how the President is seen as somehow "supporting the troops" by sending them off to fight an unnecessary war is just amazing to me.

[Gary Farber]

Senate Resolution 85.

To say that there was no authorization by Congress for supporting an action that the Senate specifically resolved should happen is inaccurate.

"specifically resolved should happen"?

There are 1100 words in the text, 11 clauses, and those clauses specifically: "applauds, strongly condemns, calls on Muammar Gadhafi, calls on the Gadhafi regime, welcomes, urges, urges, welcomes, welcomes, welcomes, welcomes."

Sorry, no "resolved" in there. You're making that up. Neither did the Senate "specifically resolve" anything that should happen. Nor is a sense of the Senate resolution anything like a bill, nor does one house acting alone have any force of law.

I'm losing track of the number of ways in which this is wrong.

As other commenters have noted, Congress has implicitly supported this action by continuing to fund it, and failing to take measures to stop it.

Grand to know you're such a supporter of the Imperial Presidency, and executive militarism. Noted.

No, Congress didn't declare war, and didn't pass a law authorizing military action, but the Constitution doesn't specify the specific form through which Congress may exercise its authority.

WTF?

I don't know what Constitution you've got, but mine has Section 8, specifying the Powers of Congress, and says:

The Congress shall have Power To [...] declare War [....]

I'm just amazed that you feel that the President of the U.S. has the right to attack any country with military force until such time as the Congress cuts off funding. It's good to have a Supreme Leader and the right to massively kill with no need for legislative approval, or any need to engage in minor details like following the Constitution and declaring war.

I guess that the whole "Congress shall have power to declare war" thing was some sort of lark with no meaning. If not, what meaning, exactly, is it supposed to have?

This isn't some trivial part of the Constitution. If the President has power to unilaterally declare war, slaughter whomever the president wishes, and the only power Congress has is to try to defund the war, well, why would the president bother to pay attention to that, anyway? If you can ignore Section 8, what other part of the Constitution is supposed to hold, and why? Under what reasoning? What language? Why would it be superior to Section 8?

Why is it "carp" for the office of legal counsel to write a memorandum explaining the legal rationale for an action?

Oh, absolutely, everything John Yoo and David Addington wrote is correct.

The president has the right to crush boys testicles according to the Constitution.

Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?

Yoo: No treaty.

Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.

Yoo: I think it depends on why the President thinks he needs to do that.

Good to know where you stand, sapient. If the OLC says it, it must be true. The President can burn people alive, torture at will, imprison without habeaus corpus, and is simply able to issue dicta.

God bless Bill Rehnquist, John Yoo, David Addington, and all the other fine and upstanding authorities who have held that office, as they can do no wrong. We have no law but that what the OLC decrees.

There are words for this form of government. Grand to know it's what you think we live under, and wish to live under.

And so genocide and torture are okay so long as they're done in the name of being against genocide.

Rule of law are for wimps, when we can have rule of Men Doing The Right Thing, like ginning up wars against Evil People.

How very Godwin.

[Gary Farber]

Office of Legal Counsel.

What the OLC issues has the force of law. Perhaps not everyone understands that the memos it issues aren't like blog comments, where anyone can issue an opinion, but are Opinions that function within the executive branch little differently from the way a Supreme Court decision holds force of law over the entire government, or the way a law passed by both houses, and signed by the president (note: not a "sense of" Congress, let alone a single body of Congress) does.

The OLCs opinions/memos are regarded as legally binding. They're not just the equivalent of someone wandering by and advising the president on what to have for dinner.

[cleek]

i know Libya, Grenada and Iraq I have been covered in comments, but i gotta say: the fact that the original post left them out really rolls my eyes. not even a passing attempt to deal with these obvious exceptions to your "only Democrats do it" thesis ?

come on.

[McKinneyTexas]

not even a passing attempt to deal with these obvious exceptions to your "only Democrats do it" thesis ?

Which wasn't the point of the post.

[Gary Farber]

McKinney, when one writes a blog post, one doesn't get to determine what people choose to comment on, and one doesn't get to restrict that to one's own point.

Commenters are just annoying that way. They have points of their own. :-)

[McKinneyTexas]

McKinney, when one writes a blog post, one doesn't get to determine what people choose to comment on, and one doesn't get to restrict that to one's own point.

Understood. Just trying to get the comment count up. Smiley Face.

[Turbulence]

If the President has power to unilaterally declare war, slaughter whomever the president wishes, and the only power Congress has is to try to defund the war, well, why would the president bother to pay attention to that, anyway?

Because Americans have adopted a norm that says that declarations of war are optional and adherence to that norm is not synonymous with complete lawlessness. Of course, we don't have to speculate: we can consult history and see what an actual living US President did when Congress defunded military aid that the President wanted. Specifically, we can look at what Gerald Ford did when Congress rebuffed his efforts to give South Vietnam a huge military aid package
(as Matt Yglesias suggests here). Did the President respond by ignoring Congress and giving the aid anyway? No. Did he respond by dissolving Congress and imposing martial law? No. He acquiesced.

Now, military aid is not the same as military action, but I don't see why a President would dissolve Congress when it objected to his efforts in one case but not the other.

[Carleton Wu]

Good to know where you stand, sapient. If the OLC says it, it must be true.

I think he clarified that position already- if the OLC says it, then let's discuss their rationale rather than yelling "YOO! YOO!" After all, just because the OLC says it doesn't mean that it's false, either.

quoth sapient In order to attack the legality of Obama's actions, one would have to rebut the legal document defending those actions put out by Obama's Office of Legal Counsel. That seems like a reasonable position to me. Maybe the document is Yoo-quality BS, in which case this should be a relatively easy thing to do.

[Carleton Wu]

But what failure to "estoppel" does do is remove your right to have your whining be taken seriously

Not a productive tone at all.

[Carleton Wu]

No, I'm talking about scale. Surely scale is important, isn't it?

That's fine, but if there's a constitutional issue with sending soldiers off to engage in combat without a Congressional DOW or other explicit approval, then I don't see the question of scale.
Or, to put it another way: if Grenada is one kind of thing Constitutionally and Libya is another kind of thing Constitutionally, then tell me exactly where the dividing line is between the two activities- with supporting citations from the Constitution or other relevant documents...

Now, if the argument is that this judgment is for the people to make at the ballot box, then Im in ageement. But if there's some standard that Obama is supposed to adhere to other than his own judgment, then I think it needs to be laid out explicitly.

I think they absolutely did not foresee situations where we might (for instance) elect to stage an invasion of a small island under the guise of rescuing students.

iirc the military was frequently engaged in small-scale activities on the frontier in the 1800s against various Native Americans. Reprisals, etc. And there's a whole series of military actions in Latin America that I dont think had explicit Congressional authorization.
That's not the 1700s, but it does suggest that there's a history of the use of military force short of 'war with a major power' without Congressional endorsement.
nb I dont know the details of all of these actions, so I dont know how many had Congressional approval of some kind.

[Turbulence]

I think Scott Lemieux gets it right here when he highlights the difference between norms that can plausibly be read in the text of the Constitution and norms as our government has actually understood them going back a few centuries:

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.

[Slartibartfast]

if there's a constitutional issue with sending soldiers off to engage in combat without a Congressional DOW or other explicit approval, then I don't see the question of scale

I believe I noted, in a subsequent comment, that I do believe there are issues with (apparently) arbitrary decisions to apply military power where there's no clear need.

My comment about Grenada and scale was just that there is a wee bit of difference between Grenada and Libya. In Grenada we had both objectives (overt or covert, or both) and a short time frame in which those objectives could be achieved. In Libya, that's not so clear.

if the argument is that this judgment is for the people to make at the ballot box, then Im in ageement

Ballot box decisions nearly always occur after the fact, unless you're talking about true democracy. But we don't have that.

[Slartibartfast]

But what failure to "estoppel" does do is remove your right to have your whining be taken seriously, when you complain "he shouldn't DO that!", and you didn't bother lifting a finger to prevent it.

I didn't read the above as referring to whining on the part of McKTx; I read it instead as referring to whining on the part of Congress, or some subset thereof.

As always: I could be wrong.

[Carleton Wu]

Grenada, Libya (Reagan) et al--the constitutional gray area is whether the President can act in emergent circumstances.

I dont think that's a gray area at all; historically it hasn't been, and when the circumstances of the 1700s are considered I think it's obvious that "Commander-In-Chief" implies some freedom of action without Congressional approval.
I think the gray area is 'what constitutues the requisite emergent circumstances', not 'can the President act in emergent circumstances'. Which IMO shifts the debate.

not the point of my post, which is limited to constitutional process, not individual case-by-case merit

That doesnt seem right either from a legal perspective (how can we understand the process without being able to understand how it applies to particular cases?) or in terms of what you were doing- taking specific cases and condemning them as extra-Constitutional. And then, later, excusing other cases under various extenuating circumstances.
Unfortunately, you've conveniently condemned the Dems and excused the Republicans, which to me seems countrary to your stated original purpose to stand in support of Constitutinal principles over party- it seems to me that you've done exactly the opposite, using strained interpretation to attack one side and defend the other.

Grenada was to rescue medical students deemed in peril, Libya was a reprisal for Lockerbie.

The medical students were a pretty obvious fig leaf. If we're obliged to take that seriously, can Obama claim that Libya was a threat to US shipping in the Med and we're compelled to believe him?
The 1986 bombing of Libya was a reprisal for a bomb in Germany, not the Lockerbie bombing (1988). It's not at all clear to me how a reprisal requires such quick action that it couldn't wait for a Congressional resolution. Or how a military reprisal doesn't constitute an act of war.

Defining vital interests--yes, this is pretty much subjective, but not completely so. Further, I specifically note that any threat to our vital interests was not imminent. One could argue otherwise, but I doubt there'd be many takers.

Well, if we had a vital interest, it was preventing attacks on civilians and burnishing our (mostly rhetorical) support for democratic movements in the region. I dont know that that's vital, but I can pretty easily argue that it was extremely time-sensitive.
I think I can make a better argument for the time-sensitivity of the current NFZ than I can for the reprisals in 1986 or the Grenada invasion.

But, the Constitution doesn't provide for war by estoppel, doesn't provide that Congressional failure to stop a war a president starts ratifies that war and makes it legal and it doesn't provide that failure to defund the military during combat operations initiated by a president waives Congress' right to declare the president's actions illegal

I think the argument here is this: if there are limits on the President's ability to direct the military, they come from Congress's power of the purse and from the ballot box. The courts have some role, but that role IMO is around things like military courts etc. They are not, and should not, become involved in deciding what constitutes a war, what constitutes a vital national interest, or what constitutes a necesssity requiring swift action versus one allowing for deliberation.

Which means, to me, a subtle shift in your role- rather than arguing that any use of military force by the President requires Congressional authorization (a position which I think you've withdrawn from to some extent given your comments on Grenada etc), I think you'd need to argue the specifics of this case: why involvement in Libya was not in our national interest, why the size or timing of the deployment ought to have required Congressional approval, etc.

[Carleton Wu]

I believe I noted, in a subsequent comment, that I do believe there are issues with (apparently) arbitrary decisions to apply military power where there's no clear need.

My comment about Grenada and scale was just that there is a wee bit of difference between Grenada and Libya. In Grenada we had both objectives (overt or covert, or both) and a short time frame in which those objectives could be achieved. In Libya, that's not so clear.

Ive gone a little bit meta here- Im arguing that we need exactly the sorts of judgments that you're making to decide on whether our involvement in Libya was a good decision. And, I suppose, Im arguing that calling it 'unconstitutional' is the wrong frame- if the public believe that this was a bad decision (or, that they don't share Obama's opinions regarding necessity etc), then that's properly settled by Congress or at the ballot box.
If the President is doing something unconstitutional, then there ought to be a remedy in the courts (at least, as we've set things up, this doesn't have actual constitutional support). But this doesn't at all look like a hard-and-fast rule type of situation. This is a judgment call. Calling it unconstitutional short-circuits the discussion we should be having IMO.

I was on the fence about Libya before and I still am. But Im pretty much against calling this sort of thing unconstitutional on its face and avoiding a discussion on the merits.

Thus, my comment to you about size and the Constitution- the size of a deployment is a big factor in deciding whether it was a good idea, justified, etc. But not in terms of a bright line in the Constitution between "war" and "non-war", in terms of the Congress and the people choosing whether to support the President's judgment.

[Carleton Wu]

I didn't read the above as referring to whining on the part of McKTx

ah, my bad- you're right, that looks more plausible than my reading of it. Apologies, snarki.

[Console]

We're muddying the waters of how some of these historical events actually happened.
There's no "authorization of force" for the korean war. Congress funded the korean war, sure. But that's the point. You necessarily approve the president's warmaking power by giving him the tools to make war with no strings attached. Hell, it took us damn near 150 years to get one string attached (the war powers act)

The real problem is that the constitution's powers surrounding war only make sense if the president doesn't have a standing army. By continually funding one, you pretty much giving the commander in chief carte blanch to deploy them wherever he feels like.

[Paul Nicholas Boylan]

Mr. McKinney - How dare you point out the hypocrisy of the left? I do not mind you doing so, but I do object to how articulately and reasonably you did it. Reason is simply uncalled for and borders on the unethical in the current political framework.

Shame on you, sir. Shame on you for not resorting to bombast and hyperbole to make your points, rendering those points impossible to summarily dismiss.

[sapient]

Gary: "The OLCs opinions/memos are regarded as legally binding."

Gary, I think this is incorrect. The wikipedia article you cited is 1) not sufficient authority, and 2) doesn't really say that. What it does say is that it has binding effect on the executive department (citing a Newsweek article as its authority). I would certainly question that Newsweek article's accuracy. The Wikipedia article also says that its "binding effect" has never been tested in court.

[Slartibartfast]

Calling it unconstitutional short-circuits the discussion we should be having IMO.

Yeah, that's pretty much why I've avoided it. Also, "unconstitutional" to me means something akin to "illegal", and I'm not attempting to make that sort of claim, here.

[matt]

I don't see what the big deal is. congress could tie the president's hands in libya if it wanted to.

[sapient]

Gary, I'm "making things up"? When I say that when the Senate passed a <http://thomas.loc.gov/cgi-bin/query/z?c112:S.RES.85:>resolution ("resolved" is the shorter verb for that, and is contained in the resolution:

"Resolved, That the Senate--

...(7) urges the United Nations Security Council to take such further action as may be necessary to protect civilians in Libya from attack, including the possible imposition of a no-fly zone over Libyan territory;"

You're saying that I'm making it up that the Senate by unanimous consent didn't pre-approve the action of the security council and by logical extension, America's participation in its enforcement?

I gave you more credit than you deserve.

[hairshirthedonist]

The "Left-in-Power"? To quote the parking-lot attendant in Ferris Bueller's Day Off, after Ferris asked if he spoke English:

"What country do you think this is?"

If you meant Barack Obama, well, there's not much Left left there.

[sapient]

Console, agreed.

[cleek]

Which wasn't the point of the post.

maybe i'm particularly slow today... but,in that case, could you tell me what the point was ?

[sapient]

More on the Office of Legal Counsel, and its opinions having the "force of law".

Actually, that is a myth contrived by the Bush administration to excuse the entire Executive branch from its responsibility to follow the actual law. Gary, you might be interested in the comments of Sheldon Whitehouse lambasting the Bush administration for purveying this myth:

"Here is the one I found perhaps most personally nauseating:

'The Department of Justice is bound by the President's legal [opinions.].'

A particularly handy little doctrine for the White House, when it is the legality of White House conduct that is at issue. Wouldn't it be nice if you could come into the courts of America or face the laws of America with a principle that the law-determining body has to follow your instruction? If criminals had that, no one would ever go to jail.
It is inappropriate in our system of justice. So I found these theories pretty appalling. I found them to be, frankly, fringe theories from the outer limits of legal ideology. They started me worrying about what is going on at the Office of Legal Counsel."

So, no, Gary. OLC opinions do not have the force of law. That is, unless you agree with John Yoo's crowd.

[sapient]

Hartmut, thanks for your comment re: WWII. I have to study up.

[sapient]

Gary, I began responding to your 11:09 a.m. post, item by item, and have just now read the whole thing. You have totally misrepresented what I've said and what I believe. I would suggest that you take the advice you so often give to other people, and respond to what people actually say.

The Constitution does not specify a form through which Congress declares war. We all know that Congress has the power to declare war. We all know that it usually doesn't, even though we seem to be fighting wars all the time. The Supreme Court has repeatedly declined to declare various wars "illegal" or "unconstitutional" despite no formal declaration of war being made.

Whether I like the situation or not is really not the issue, is it? In fact, I don't like the fact that, say, Bush invaded Iraq in what I believe was a violation of international law. I am much less peeved (in fact, I'm happy) that the United States has supported the United Nations in its effort to protect civilians in Libya. So, now that you know how I feel, please quit pretending that I'm in league with the Bush administration.

As to the OLC, I believe that they have a legitimate job to do, and it's not to make laws or to excuse the Executive branch from abiding by the laws.

[jack lecou]

So, no, Gary. OLC opinions do not have the force of law. That is, unless you agree with John Yoo's crowd.

I'm sure Gary can defend himself, but I read him somewhat differently.

I think it is plausible that OLC opinions should be treated as binding by the executive in the sense that they serve not as a substitute but as a *proxy* for what the courts would decide.

In other words, if the OLC says "X is illegal" or "X is legal" then the executive is obliged to regard that as "true" and act accordingly (as long as the opinion isn't obviously crazy). They might be required to regard it as if that is what the courts *would* decide *if* the matter is ever brought before them.

That's very different from regarding OLC opinions as *actually* having the force of law - e.g., the Bush administration's apparent position that OLC opinions should amount to some kind of get out of jail free card once the matter in question actually winds up in the courts.

[Carleton Wu]

In other words, if the OLC says "X is illegal" or "X is legal" then the executive is obliged to regard that as "true" and act accordingly

Of course any party ignoring the advice of 'their' legal team puts itself in jeopardy. The OLC isn't an ordinary in-house legal team, but I dont think there's anything binding about their rulings- they only have the force insofar as the President chooses to enforce them on the executive branch.
Practically, I think the executive would raise a lot of questions if they ignored the home-court rulings of the OLC- which is what I think you're saying with "obliged", but not sure about that.

[jack lecou]

Practically, I think the executive would raise a lot of questions if they ignored the home-court rulings of the OLC- which is what I think you're saying with "obliged", but not sure about that.

Well, what does "legally binding" really mean in this sense? I really have no idea, but it seems to me the relationship between the President and the OLC is somewhat special, more than just the relationship that a company has with its counsel, or even the relationship the President has with his own in house lawyers. For example, if the OLC declares "X is illegal" and the President goes ahead and does it anyway, couldn't that create a situation that, legally speaking, goes beyond just looking kind of unseemly? Grounds for the Justice Department to initiate some kind of action, say?

[McKinneyTexas]

The 1986 bombing of Libya was a reprisal for a bomb in Germany, not the Lockerbie bombing (1988). It's not at all clear to me how a reprisal requires such quick action that it couldn't wait for a Congressional resolution. Or how a military reprisal doesn't constitute an act of war.

First, CW, thanks for the correction. It was the club bombing not Lockerbie. Second, good point on reprisal. It's right there in the war powers, "to grant letters of Marque and Reprisal." The notion of going to Congress for a "letter" has the unfortunate effect of tipping off the bad actor, which makes the job more dangerous for the folks actually carrying it out.

You necessarily approve the president's warmaking power by giving him the tools to make war with no strings attached.

I can't agree. This effectively shifts the war making power to any president with decent popularity. Once the troops are committed, congress' theoretical authority to defund is neutered by the presidential mau-mauing congress would take for not supporting the troops.

To take this just a bit further, if a president wants a war (say, e.g. in SE Asia) he just needs to come up with a provocation (say an ambiguous event in the Gulf of Tonkin) and start shooting (granted, LBJ got a resolution, but we've moved on from that), and then congress gets drug along. IOW, provoke an ambiguous incident, expand it and what is Congress going to do? Surrender? Not likely.

What's worse about the role reversal we've come to accept as the new normal is that it excuses congress from its constitutional role and obligation. They can let the president go to war on their own say-so and then be "forced" to go along.

[Console]

The role reversal is Congress granting the president a standing army during peacetime.

The constitution isn't really built for the situations we are talking about because they weren't meant to happen.

[sapient]

jack and Carleton, I'm not sure what Gary was getting at, other than to attack the opinion that I cited. I agree with both of you regarding OLC rulings.

OLC opinions are weighty documents, no question. But they don't have the "force of law:" they could not supersede a statute; a court would not require someone to act in accordance with an opinion that conflicted with a law. You're right that some Executive Branch official acting contrary to an opinion might have a lot of explaining to do both in a professional and even a legal proceeding. An opinion could probably be cited as persuasive authority to a judge, but not as binding authority, and (depending on the judge) it might "excuse" lower level executive department employees who regard the opinions as legal advice, even if the opinions were found to be wrong.

The particular memorandum at issue states the President's legal case for assisting the UN mission. I don't see anything Bush-like about it. People are free to disagree with its contents, but it wasn't secret, it doesn't attempt to justify torture or anything unusual compared to what Presidents have done for the past (at least) 70 years, and the legal reasoning behind it is sound and based on a good faith understanding of underlying legal principles.

[McKinneyTexas]

but,in that case, could you tell me what the point was ?

Comparing Obama and Clinton to Bush, the latter observed the constitutional forms for both of his wars, the former did not. The left, or a lot of it, isn't nearly as upset as it should be. In a nutshell and leaving gaps is nuance etc, that is pretty much it.

Bush I went into Somalia, IIRC and Clinton got stuck with that one. Could be wrong, it could have been Clinton's deal from the get go. Reagan sent the marines to Lebanon, to no good end and without authorization although they didn't actually fight, they just got the carp blown out of them.

The CW is that the right is on board with an Imperial Presidency. It is half right. I think it's bipartisan, with the minority opposition also being bipartisan.

[Carleton Wu]

For example, if the OLC declares "X is illegal" and the President goes ahead and does it anyway, couldn't that create a situation that, legally speaking, goes beyond just looking kind of unseemly? Grounds for the Justice Department to initiate some kind of action, say?

Could be. Or not, depending- in this case, let's hypothesize that the OLC said that enforcing a NFZ over Libya required Congressional authorization. But the President does it anyway. There's not much to refer to the Justice Dept I think- the only legal process available is impeachment, and that happens elsewhere.

In any case, I think the rationale for any action by Justice etc would be the underlying law, not the OLC opinion. Now, the OLC is likely to be as friendly as any court to executive action, so we can certainly view that as an unofficial line in the sand- a high-tide mark for the legal interpretation of executive power- but it just doesnt have any legal power in and of itself.

So I could say "practically binding", or something like that. "Legally binding" though, means that the Executive is barred from ignoring the OLC's position, and there's no Constitutional support for that position.

This is all tangential to the actual role of the OLC in this case. Unsurprisingly, the OLC's opinion supports the President- the question is, if we're arguing about the Constitutionality of that decision, wouldn't it be a good idea to look at that opinion as (at least) 'the case for the executive'? Not that it's binding on the executive or on anyone else.

[Turbulence]

The left, or a lot of it, isn't nearly as upset as it should be. In a nutshell and leaving gaps is nuance etc, that is pretty much it.

I specifically haven't criticized Bush for failing to get a "declaration of war" in Iraq; I mean, if he wanted to, he probably could have, but the war would have still been profoundly stupid and illegal for other reasons anyway.

My sense is that many people on "the left" share this view, but I could be wrong. Can you link to some front page posts on this blog that specifically criticized Bush for failing to get a congressional declaration of war? Because if you can't, then maybe this post is a bit pointless?

[Console]

"Comparing Obama and Clinton to Bush, the latter observed the constitutional forms for both of his wars"

Ha.
What makes some "authorization of force" more constitutional than funding the war? Either way, no war was declared. An authorization of force is no more constitutional than an authorization of "you can make whatever laws you want now"
The standard we are using has a hell of a lot less to do with the constitution and way more to do with democracy. In that sense, all these wars have the consent of the governed.

[Countme--In]

Constitutional form?

Regarding Iraq, I guess that's one way to refer to a tissue of lies, false intelligence, and the destruction of those who differed with the policy.

Many Democrats went along with the presentation thinking they would be spared Republican characterizations as anti-American, Muslims, Commies, and al-Qaeda sympathesizers after 9/11.

How'd that turn out?

But, yeah, it followed Constitutional form, much as a shadow finger puppet of a bunny looks like a rabbit.

As to Libya, bad move on Obama's part, Constitutional or not.

Too many things could go wrong for decades.

[McKinneyTexas]

Im arguing that we need exactly the sorts of judgments that you're making to decide on whether our involvement in Libya was a good decision. And, I suppose, Im arguing that calling it 'unconstitutional' is the wrong frame- if the public believe that this was a bad decision (or, that they don't share Obama's opinions regarding necessity etc), then that's properly settled by Congress or at the ballot box.

Went back and re-read that plus Slarti semi-equating unconstitutional with illegal. Taking the unconstitutional/illegal point first, the two may or may not be the same. Consider judicial review: a law found unconstitutional was not illegal although it might be illegal to continue to try to enforce it. The president ordering a US citizen shot on sight would be both unconstitutional and illegal. Prior restraint on speech is 99.999% of the time unconstitutional. It may or may not be illegal.

I don't want to be guilty of recasting CW's position. My take is that the validity of a president's unilateral decision to go to war is whether the decision to do so was good or bad. I think there are real problems here. Leaving aside the idea that the constitution is there for a reason and we don't get to rewrite it on the fly when it's to our advantage, if the only three remedies for stopping a war are impeachment, defunding or the voting booth, that leaves the citizenry with a pretty carpy set of choices.

It's bad enough that we could find ourselves on the brink of general war if something ambiguously violent were to occur in the South China Sea and escalate quickly out of control, but at least we would hopefully be acting defensively and not offensively.

In Libya and in Bosnia (Iraq too, Afghanistan was different), we were neither acting defensively nor facing a immediate threat. The War Powers Act and the Constitution are supposed to keep things like Bosnia and Libya from lasting 10 years. They aren't working, Exhibits A and B being Iraq and Afghanistan. Ex. C is Bosnia, where we still have a military presence.

The Constitution contemplates debate (implicit) and a vote (explicit)by both houses prior to initiating hostilities. The funding/defunding line of thinking degrades that process because the debate doesn't begin until after the first shots have been fired. Put differently, the debate is skewed violently by the 'rally round the flag' mentality--a mentality that, IMO, very much has a place in our country. I am not dissing that per se so much as saying that it isn't conducive to weighing the pluses and minuses of going to war.

CW, if I've recast your position in a way that you didn't intend, please consider the above withdrawn.

[Carleton Wu]

This effectively shifts the war making power to any president with decent popularity. Once the troops are committed, congress' theoretical authority to defund is neutered by the presidential mau-mauing congress would take for not supporting the troops.... What's worse about the role reversal we've come to accept as the new normal is that it excuses congress from its constitutional role and obligation.

This seems like a conflation of practical politics and Constitutional law. It's entirely possible for eg Congress to have the Constitutional power to act but lack the political will. And if that's the case, it does not mean that they lack the Constitutional power or that the Constitution must be re-interpreted to prevent this circumstance from occurring.
[Id also note that we had quite a bit of Presidential mau-mauing before the Gulf War, and several outright lies that were used to convince the public and Congress (and the UN) of the case for war. So your proposed change doesn't even solve the problem I think].

Comparing Obama and Clinton to Bush, the latter observed the constitutional forms for both of his wars, the former did not. The left, or a lot of it, isn't nearly as upset as it should be. In a nutshell and leaving gaps is nuance etc, that is pretty much it.
Bush I went into Somalia, IIRC and Clinton got stuck with that one. Could be wrong, it could have been Clinton's deal from the get go. Reagan sent the marines to Lebanon, to no good end and without authorization although they didn't actually fight, they just got the carp blown out of them.
The CW is that the right is on board with an Imperial Presidency. It is half right. I think it's bipartisan, with the minority opposition also being bipartisan.

That would be the first half of my point- I dont recall a great uproar about the Constitutionality of Panama or Somalia or Grenada etc. If your thesis is that the Left is holding its collective tongue bc of partisan politics, Id want to see the evidence that they werent holding their tongue when it was done by the GOP.
Second, Id not characterize Grenada, Somalia, the Balkans, or Libya as wars. Panama, I dunno, but there's certainly a case for saying it's not a war. (Note how silly it sounds to say "The Grenada War" or "The Somalia War").
Whereas Gulf War I, the Iraq War, and the Afghanistan Whatever are (IMO) wars, pretty clearly. Not everything where a shot is fired is a war. That's just me opinionating, but I think that also applies to your criteria of "troops committed to combat operations". Congress has it's opinion (ie the War Powers Act), which is probably more useful than either of ours- but it's still an opinion about a matter of judgment, and I say that that goes back to the people and Congress to decide. At which point we're debating the merits, rather than some abstract "is this a war, or just a police action?"

I think that your new position seems much more accurate to me than what you said in the original post One glaring fault of the Left-in-Power is its lack of respect for the constitutional process on that most fundamental question of committing the country to war. Now you're saying that this is more a function of the executive in the postwar era than any particular political party.

Finally, to the best of my recollection the history of the US is replete with the executive using small-scale military force extra-territorially without explicit permission from Congress. See eg Wikipedia-Timeline of US military operations

[McKinneyTexas]

Can you link to some front page posts on this blog that specifically criticized Bush for failing to get a congressional declaration of war? Because if you can't, then maybe this post is a bit pointless?

See Console's comment just below yours. Console believes a joint resolution authorizing the use of military force is not the constitutional equivalent of a declaration of war. I disagree.

And, no, I am not saying the left criticized Bush but isn't criticizing Obama/Clinton. I am saying that Bush observed the forms, Obama and Clinton did not, i.e. they commenced hostilities without congressional authorization. Had Bush started his wars that way, I think the left would have been much more vocal than it currently is.

[bobbyp]

Letters of Marque? I'd forgotten that one. Maybe that's how we co-opt the Somali pirates.

McKinney: Rest assured there are many leftists (raises hand) out there who are outraged by Obama's Libyan action, and you must have missed all the "in-house" feces throwing about Clinton's Bosnian adventure.

But since we are generalizing here, I'd just say that your post expemplifies the typical conservative inability to do nuance. :)

As to your contention re "Constitutionality" please address this one: The Eisenhower Doctrine and our intervention in Lebanon shortly thereafter. Essentially, the executive was granted power to unilaterally decide to use force to prop up a policy (?) . Now how far afield from constitutional principles was that?

Welcome aboard.

[Carleton Wu]

My take is that the validity of a president's unilateral decision to go to war is whether the decision to do so was good or bad. I think there are real problems here. Leaving aside the idea that the constitution is there for a reason and we don't get to rewrite it on the fly when it's to our advantage, if the only three remedies for stopping a war are impeachment, defunding or the voting booth, that leaves the citizenry with a pretty carpy set of choices.

That's close- my position is where I think Jefferson stood on the issue ie the final arbiter of the Constitution is the people (based on his actions during the Alien and Sedition Act situation). So it's not just that they're saying 'good or bad', it's that they'd look at what occurred and say 'was this a conflict that ought to have required Congressional authorization?' Of course, Congress can also speak to this, and then the people can speak to Congress as to whether their interpretations are in agreement.

But that's beside the point as well- it is already always the case that we've only got recourse to impeachment, defunding, or the voting booth. Or, there's a fourth alternative, but I find it completely unpalatable: that the USSC would find itself acting as the arbiter of whether a military action was large & important enough to require Congressional authorization, whether it was defensive or offensive in nature, whether it regarded a critical national interest, etc. All political questions which- again IMO- ought to be kept far away from the court. At least, until such time as we are in monolithic agreement about what constitutes such factors as "critical national interest".

So, if this is your objection (ie that only impeachment, defunding, or ballot box can stop a war under my interpretation), how does your solution differ?

Bush started his wars that way, I think the left would have been much more vocal than it currently is.

I agree, but I also regard these wars as being qualitatively different than Clinton in Bosnia or Bush I in Somalia. So the public might have regarded them differently as well, and wanted a different Constitutional proceedure for these very different types of conflicts.
If your thesis was correct and the left would've castigated Bush II for going to war with Iraq without Congressional approval, Id say that only proves that this was very different than Grenada or Panama or Somalia or Lebanon- all events where iirc most from the left did not make such an argument.

[jack lecou]

Comparing Obama and Clinton to Bush, the latter observed the constitutional forms for both of his wars, the former did not. The left, or a lot of it, isn't nearly as upset as it should be. In a nutshell and leaving gaps is nuance etc, that is pretty much it.

But why do you think they're supposed to be upset at some particular level?

This is what others are arguing here when they point out that there is no clear procedure for declaring or going to war, and hasn't been one for some time. In this age of standing armies, there seems to be little practical or legal constraint on the patients hand.

There is generally (and rightly) some tut-tutting about this state of affairs, of course, left and right, but it understandably scales with the perceived seriousness of the conflict.

If you perceived greater outrage from the left over Bush's war, I would suggest that that had much less to do with the constitutional issue, and much more to do with, first the likely illegality of the war in an international sense, and second, somewhat meta-level outrage over right wing claims that the AUMF actually constituted a declaration of war, and the perceived abuse of the truth and process that that amounts to. I think that in some ways, a more straightforwardly extra constitutional use of force would have met with less protest (or at least different protest) than the abuse of the AUMF fig leaf.

[bobbyp]

McKinney: "And, no, I am not saying the left criticized Bush but isn't criticizing Obama/Clinton."

But wait...there is this dangling clause in your little essay, oppressive in its guilt-trippedness:

"....yet where is the outrage on the left?"

So which of your quotes are you going to strike out? Thanks.

[McKinneyTexas]

As to your contention re "Constitutionality" please address this one: The Eisenhower Doctrine and our intervention in Lebanon shortly thereafter. Essentially, the executive was granted power to unilaterally decide to use force to prop up a policy (?) . Now how far afield from constitutional principles was that?

I can't answer this due basically to lack of familiarity. I had a limited handle on this many years ago, but I just can't remember much about it.

Welcome aboard.

Just a guest post, but thanks.

So which of your quotes are you going to strike out? Thanks.

Neither, because the import wasn't as you read it (although the choice of language was less than crystal clear). I wasn't, in my post, setting up a "The left complained when Bush did it, but is being quiet when Obama/Clinton do it" comparison. Rather, I was noting that Bush, unlike Obama and Clinton, followed the constitutional process before beginning a war. Normally the the left is quick to stand on constitutional principles, but in these instances, the outrage is scattered and not so loud.

[Console]

I don't see why "defunding" is some huge hardship on Congress. Out of all the things Congress has the money to spend on, the only one that the Constitution puts a time limit on is military spending. Congress was meant by design to have to give ongoing approval for wars.

[Console]

As a thought exercise, why would Bush require an authorization of force for Iraq in the first place? Why wouldn't it be covered under the first gulf war?

I just don't see how "authorizations of force" and things like the Tonkin Resolution are legitimate constitutional limitations on a damn thing. If the argument is that congressional authorizations of force limit our involvement in war, I don't think history nor logic bears that conclusion.

[McKinneyTexas]

So, if this is your objection (ie that only impeachment, defunding, or ballot box can stop a war under my interpretation), how does your solution differ?

I am not offering a solution, but it's a damn good question, if I am getting it right: what alternatives do congress/the public have other than impeachment, defunding and/or elections? None, I suppose. Too damn bad. Plus the precedent compounds the problem.

[McKinneyTexas]

I just don't see how "authorizations of force" and things like the Tonkin Resolution are legitimate constitutional limitations on a damn thing. If the argument is that congressional authorizations of force limit our involvement in war, I don't think history nor logic bears that conclusion.

I don't think they are constitutional limitations on anything. Just the opposite: they are sufficient, constitutionally, to allow a president to wage war. Whether they are wise is another matter. I'm limiting my comment to what I see as a constitutional issue.

[jack lecou]

I'd also say that the entire frame of this post is a little objectionable, inasmuch as it serves to veneer the Bush war with a certain kind of pro-forma legality or morality while implying that the Clinton or Obama wars lacked the same.

It's a little bit like pointing out that a certain mass killer at least pretended to fill out some revered but anachronistic paperwork beforehand, while another less ambitious killer neglected it. (And then lambasting liberals for being more upset about the more numerous and flagrant crimes of the former.)

Constitutionality is important, but for various historical, legal, practical and moral reasons, it's very much the lesser issue here.

[jack lecou]

I wasn't, in my post, setting up a "The left complained when Bush did it, but is being quiet when Obama/Clinton do it" comparison. Rather, I was noting that Bush, unlike Obama and Clinton, followed the constitutional process before beginning a war. Normally the the left is quick to stand on constitutional principles, but in these instances, the outrage is scattered and not so loud.

I'm not sure I see the distinction. You've obviously got some baseline you're using to make the judgement that the outrage on the left is "scattered and not so loud." Not so loud as what?

I would submit that, to the extent that outrage from the left on this particular matter existed at all in past situations, the difference in "loudness" is explained entirely by the particular details of the situations. Namely that, although there are many reservations, the current Libya intervention is perceived as relatively limited, at least somewhat justified, and that Obama appears to be taking pains to foist as much leadership and responsibility as possible onto other nations and international bodies.

Rightly or wrongly, I think the "war" aspect is minimized, while the "just playing along in a minor way as a responsible world citizen" aspect is maximized. Any concerns people might generally hold about formal declarations of war are going to be pretty attenuated in those circumstances.

There is no mystery worth noting.

[Carleton Wu]

Normally the the left is quick to stand on constitutional principles, but in these instances, the outrage is scattered and not so loud.

Thanks, we do try. :) But what Im suggesting here is that the lack of outrage is due in no small part to an apparent difference in Constitutional interpretation rather than partisanship. And that that we can see the difference between the two positions insofar as the left didnt generally make a stink about the war clause over eg Grenada.
What is a Constitutional war? A Constitutional war is what the American people say it is.

Your other point I think is very well put though- the biggest concern I have with it is a case such as Libya (or Vietnam): start with advisors and equipment, then some auxillary actions (eg defending our ships & planes that are carrying war material and advisors), then limited preemptive strikes against facilities that might strike at our ships and planes, and so on until you've got a full-fledged war without a clear point when we could say "well, this is too much & we really need to sit down and discuss what we're trying to accomplish here" (aka declaration of war).

Im not sure there is a good solution to that, though, other than a populace that is very cognizant of those risks and a national media where we can have the conversation honestly. Im actually not unhappy with how the Libyan situation developed on that front- there were a lot of people talking about the Pottery Barn rule, what the goals/endgame are, how can we avoid mission creep etc. That's good. That's healthy. And if Obama is judged to have engaged the US unnecessarily, then he'll lose votes for it in 2012.

[wj]

A couple of points:

1) Section 8 of the US constitution says that "The Congress shall have the power . . . to declare War...". It does not, however, say that Congress shall have the sole power to declare war. Which, to my non-lawyer mind, suggests that a President committing the US to military action might not be unconstitutional after all. We can argue as to whether it ought to be, but I don't quite see that it obviously is. (Full disclosure: until this thread got me to look, I too had assumed that only the Congress could declare war. But now....)

2) What is and isn't Constitutional is, in the end, a matter of rulings by the US Supreme Court. In an issue like this, if the Court hasn't ruled, the lines between what is allowed and what is not are a little dependent on how the arguer feels the court ought to rule. And the court has a habit of making decisions which are not what, on a limited knowledge of the facts and issues, I would not have anticipated.

By the way, Wikipedia, in an article on "Declaration of war by the United States," has a table split into 1) wars, 2) military actions authorized by Congress [without a Declaration of War], and 3) military actions by the US which were authorized via UN Security Council resolution and funded by Congress [also without a Declaration of War]. They go back to the earliest days of the nation -- the last couple of decades actually don't look that out-of-pattern. Check it out.

[Slartibartfast]

It does not, however, say that Congress shall have the sole power to declare war.

So, you're saying that maybe SCOTUS also has the power to declare war? How about individual legislators?

I'm looking askance at this argument. I'd think that Constitutionally enumerated powers are the only way we know what the branches of government are supposed to do. And then we have a whole list of things the government is not supposed to do, of course.

[McKinneyTexas]

But what Im suggesting here is that the lack of outrage is due in no small part to an apparent difference in Constitutional interpretation rather than partisanship. And that that we can see the difference between the two positions insofar as the left didnt generally make a stink about the war clause over eg Grenada.
What is a Constitutional war? A Constitutional war is what the American people say it is.

CW, perhaps differences of interpretation are driven by partisanship.

Grenada had a couple of features that made it work without too much fuss. First, it was dressed up as a rescue mission. Everyone loves rescue missions, so the PR battle was over before it started. Second, it was quick and low casualty. So, that's a big plus. Third, Reagan did consult with a fair number of Dem leaders who signed on in the immediate aftermath. Fourth, it was overwhelmingly popular with the citizenry, and no prudent politician was going to buck that wave.

Grenada, which I believed at the time was a legitimate use of force and still do, illustrates the point that getting lucky once doesn't mean you get lucky everytime and a popular president can get us into a lot of trouble acting on his own if we don't start holding people to their constitutional roles.

[jack lecou]

They go back to the earliest days of the nation -- the last couple of decades actually don't look that out-of-pattern. Check it out.

Yeah. As much as we all might wish there were a stricter procedure, constitutional or otherwise, for getting involved in various military adventures, the fact is that there isn't. That horse left the barn a long, long time ago.

Which is why IMO there's never really that much "outrage" per se, so much as a background of regret about a long established precedent, and most outrage is saved for the situations where there are other issues (like, say, entering into an ill considered war in violation of international law).

[jack lecou]

It does not, however, say that Congress shall have the sole power to declare war. Which, to my non-lawyer mind, suggests that a President committing the US to military action might not be unconstitutional after all.

Well, except that the power to declare war is NOT granted to the President in Article II. Branches aren't supposed to have any powers that aren't explicitly listed.

If the President does have some authority in the area, it has to fall under commander in chief clause somehow, which means it is explicitly distinct from the "declare war" authority delegated to Congress.

[Carleton Wu]

CW, perhaps differences of interpretation are driven by partisanship.
Grenada had a couple of features that made it work without too much fuss. First, it was dressed up as a rescue mission. Everyone loves rescue missions, so the PR battle was over before it started. Second, it was quick and low casualty. So, that's a big plus. Third, Reagan did consult with a fair number of Dem leaders who signed on in the immediate aftermath. Fourth, it was overwhelmingly popular with the citizenry, and no prudent politician was going to buck that wave.

But I still don't see how this is supposed to work- if Grenada had gone badly you hypothesize that liberals would've used a Constitutional war-powers argument against Reagan? And you use that hypothetical reaction to tar current liberals for not being consistent with an hypothetical and going after Obama?
I think to make the argument that mainstream liberalism inconsistently use the war-power argument for partisan purposes, you'd need at least one example of them actually doing so.

Grenada, which I believed at the time was a legitimate use of force and still do...

Well, I hope we can all agree that the rescue mission was just a cover story. What made this a legitimate use of force in your opinion? The US President gets to replace governments if they're small enough to be conquered without much fuss?
(And if the rescue mission story is the actual justification, what makes overthrowing the local government an acceptable part of the package?)

getting lucky once doesn't mean you get lucky everytime and a popular president can get us into a lot of trouble acting on his own if we don't start holding people to their constitutional role

So Grenada is extraconstitutional, but legitimate? And Im still uncomfortable with this sort of conflation of results-based thinking and Constitutional interpretation- the Constitution can mandate unreasonable things or forbid reasonable ones, pointing out that a course of action is problematic doesn't mean that it's unconstitutional.

[sapient]

I was against the Grenada invasion, although I'm happy for the way it turned out. Like Iraq, it was based on a false premise, and it was a unilateral mission by the United States. That's the kind of executive overreaching I think is worrisome.

When the US is acting in concert with the UN, after a unanimous resolution by the Senate urging the UN action, I am okay with the President taking this very limited action. Note that Obama is keeping to his word in limiting the US role. Maybe there will be "mission creep". If so, I'm pretty sure the White House will seek authorization, and the Republican House will authorize it. John McCain would likely have bombed the entire country by this time last week.

[Gary Farber]

Now, military aid is not the same as military action, but I don't see why a President would dissolve Congress when it objected to his efforts in one case but not the other.

I don't know how dissolving Congress entered the picture.

Presidents, it turns out, vary, as do times, wars, contexts, and popularity. Gerald Ford, Richard Nixon, George W. Bush, James Polk, Abe Lincoln, Obama, any future president: all will make different decisions under different circumstances about different acts.

Ford didn't find it inconvenient to fight Congress at the time, for reasons I could go into at far greater length then Matthew, who wasn't born until long after, and whom I'm entirely sure I know one hell of a lot more about Nixon and Vietnam than. It's not terribly relevant to what George W. Bush did, or what some future hypothetical president might do, and what Obama might do remains an open question.

Obama has certainly not made dramatic breaks with George W. Bush's assertions of presidential national security power.

[sapient]

"Obama has certainly not made dramatic breaks with George W. Bush's assertions of presidential national security power."

Well, I would say that with regard to Bush's more "novel" approaches, he has made a break. He doesn't suthorize torture, for example.

[sapient]

Oh, but, gary, maybe wikipedia says otherwise. Or Glenn Greenwald or some "guy".

[Gary Farber]

Did the President respond by ignoring Congress and giving the aid anyway? No.

This is also wildly off the point. That the budget of the Pentagon has enormous discretionary funds, to the point of being able to shift billions around, and the black budget doesn't even have to be reported to anyone by the majority and minority leaders of the Intelligence Committees, and even then only in the vaguest of detail, leaves tremendous room for the President to engage in ongoing military action and is nothing like a foreign aid package to a foreign government, in a war that was lost, by a president who wasn't elected, who had no particular interest in the package being passed, but didn't want to be blamed for not trying.

It then, after all, enabled Republicans to this day to make insanely ignorant (at best) attempts to blame the Democratic Congress for losing the Vietnam war. Very convenient, and desirable, that was.

[Gary Farber]

The wikipedia article you cited is 1) not sufficient authority, and 2) doesn't really say that.

Yes, wikipedia is not sufficient authority for anything, but if you're not familiar enough with these points, I'm not going to go look up all the proper cites again, given how many hundreds of times they've been linked to in posts on this blog, just to further discuss them in comments to prove what you'd already know if you were already familiar with the facts.

I'll either do so in a post, or spend my time writing a post on something else. You're certainly welcome to believe whatever you want to believe, meanwhile, or go confirm what I've said, or look selectively for material to confirm your preferred beliefs, or otherwise spend your time as you wish.

[sapient]

Gary, "these points"? What "points" are these? You're over your head with regard to the subject of OLC opinions. I'm saying that with humility, knowing that your knowledge base is way more extensive than mine in many areas. But not in this one.

[envy]

@McT:
First, CW, thanks for the correction. It was the club bombing not Lockerbie. Second, good point on reprisal. It's right there in the war powers, "to grant letters of Marque and Reprisal." The notion of going to Congress for a "letter" has the unfortunate effect of tipping off the bad actor, which makes the job more dangerous for the folks actually carrying it out.

Not to put too fine a point on this, but... this line of reasoning makes me ill. And I say that despite being an active-duty member of the military.

Seriously. Are you actually going to sit there and argue with a straight face that the executive has carte blanche to ignore laws or even the Constitution if following them/it increases the risks faced by military personnel? Really? Really really?

So if GWB had decided to hit all Iraq's major military and population centers with ICBMs rather than risking troops' life and limb in an invasion, you'd've been cool with that? 'Cause that's the principle I see you expounding here.

[russell]

The president has the right to crush boys testicles according to the Constitution.

I have nothing to add to the general discussion, I merely want to weigh in (and bump up the comment count ever so slightly!) by saying:

David Addington and John Yoo are two sick MF'ers.

I'm not saying that because they're Republicans, or because they served under Bush. If you want to give me two minutes I'll find some sick MF'ers who served under (D) presidents.

I'm just saying it because it's so.