War Powers Act Does Not Apply to Libya, Obama Argues (Obama claims he's above the law)

NY Times ^ | 6/15/2011 | Charles Savage

[tobyhill]

The White House is telling Congress that President Obama has the legal authority to continue American participation in the NATO-led air war in Libya, even though lawmakers have not authorized it.

In a broader package of materials the Obama administration is sending to Congress on Wednesday defending its Libya policy, the White House, for the first time, offers lawmakers and the public an argument for why Mr. Obama has not been violating the War Powers Resolution since May 20.

On that day, the Vietnam-era law’s 60-day deadline for terminating unauthorized hostilities appeared to pass. But the White House argued that the activities of United States military forces in Libya do not amount to full-blown “hostilities” at the level necessary to involve the section of the War Powers Resolution that imposes the deadline.

“We are acting lawfully,” said Harold Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with White House Counsel Robert Bauer.

[allmendream]

The US Constitution says “Congress shall have the power .....to declare war.”

It says to declare war, not to “make war”.

You are correct that the form of this Congressional authorization need not say “this is a declaration of war” and many such authorizations have not done so - they use the language “authorization for the use of force” or other phrases.

But the power to declare war is Congress's, not the power to “make war”. Better read that Constitution again.

[wideawake]

What part of the NATO treaty, in your mind, obligated the USA to go to war against Libya absent a declaration of war by Congress?

(1) We did not go to war against "Libya" but we have taken action against the illegitimate dictator Muammar Gadaffi. We are allied with, not at war against, the Libyans who are calling for the restoration of the legitimate Libyan constitution.

(2) one does not need to be "obligated" to act in order to act. One need only be authorized or empowered.

(3) The part of the NATO treaties that carry that authorization are commonly called Berlin Plus.

[ichabod1]

I go to bat for anything that ties that pinko terrorist in knots.

[NonValueAdded]

The “Govern and Regulate” and “Necessary and Proper” clauses of Article I, Section 8 cannot be ignored. They too apply to the armed forces just as the “Raise and Support” clause does. We have to take the Constitution as a whole.

[allmendream]

I sent you the language of the NATO treaty.

What provision, in your mind, obligates the USA to enter into a state of war with Libya absent a Congressional authorization for such?

An attack on the USA doesn’t obviate the duty and power of Congress to declare war. Neither would an attack on a NATO member, that we are under treaty obligation to treat as an attack upon us.

Which NATO member did Libya attack again?

What provision under the NATO charter? There really are not that many to chose from. So which one?

[brent13a]

“It is the law until it's declared un-Constitutional by a Court. Until such time it must be obeyed.”

That is a common view, but it is not common sense. It's common nonsense and leftist nonsense at that. No conservative, in fact no rational person, should be making such a statement.

The President doesn't have to get a permission slip from the Supreme Court to fulfill his constitutional duties as he sees fit. Obama is entitled to conclude that the War Powers Resolution is unconstitutional as have all of his predecessors since it was passed. He is free to conclude that the Resolution doesn't apply to circumstances in Libya. The only remedy if he reaches the wrong conclusion is for Congress to stick up for itself, either by impeaching him or by cutting off funds for his misbegotten Libyan adventure. Congress hasn't done either and it won't. On this matter, then Obama gets the final word. That's how separation of powers works.

The executive power of the United States is vested in the President. The Constitution says so in so many words. It doesn't say, or even hint, that the President has to consult the courts to determine what his executive responsibilities require him to do and the idea that he should is absurd. Obama’s legal interpretations are always flawed and frequently ridiculous, but he's President and he's the one with the power to make them. Elections have consequences.

The law suit seeking to enforce the WPR in court is going nowhere. The courts won't, and shouldn't, touch this. It will be dismissed as a political question, probably summarily by the District Court. It's a dispute between the executive branch and the legislative branch which is none of the judiciary’s business. Courts aren't all powerful and many constitutional issues are entirely outside of their scope. This is one of them.

There is more than enough to throw at Obama without trying to resurrect the WPR from its constitutional grave and deploy it against him. The WPR was an artifact of the post-Watergate leftist ascendancy. It was a bad, unconstitutional, left wing idea which deliberately sought to subvert separation of powers and shackle America's military might. It's been dead for decades and good riddance. I'm all for beating up on Obama but not just any stick will do.

It's a shame that Obama’s President, but he is. He gets to exercise all the powers of the office. We can't redefine the office so that it's small enough to fit him without risking permanent damage to the constitutional order.

There are just a whole host of ridiculous statements in this post that make me wonder where in the hell you are coming from.

ie "Obama is entitled to decide…..what is Constitutional and what is not……"
"Obam gets the final word."
"Courts aren't all powerful and many constitutional issues are entirely outside of their scope."br>

Those ridiculous assumptions aside, I suggest you re-read post #33:

you have COMPLETELY missed the point, and have been living on another Planet for the last decade.

It’s not the War Powers Act itself. It’s that Dems DEMANDED IT under Reagan, DEMANDED (including OBAMA) that Bush comply with it after 9/11, and now UTTERLY IGNORE IT.

It’s hypocrisy of the highest order. And the media KNOWS they became so biased under Bush, that they DO NOT DARE report the facts about this now.

[allmendream]

That is your mistake - in thinking that any treaty can “empower” the President to act - if that act is an act of war - absent the Constitutional power of Congress to declare war.

No treaty can remove that power given to Congress under the Constitution.

What part of the “Berlin Plus” provisions cover our military actions (also know as war) in Libya?

And we are most certainly at war, via the clear meaning of language in the Constitution, with that segment of the Libyan population that supports Gadaffi.

[Ted Grant]

Yes, I was wrong and thinking of something else. But the rest of the analysis stands: congress need not have to formally declare war to meet constitutional mandate.

[allmendream]

They have to authorize it for the Constitutional power they have to be observed.

The formal/legal declaration need not say “this is a declaration of war” - there is no requirements under the Constitution for any such specific language. But it is an absolute requirement.

Congress shall have the power.... to declare war.

Nobody else has that power under the Constitution.

It is an absolute.

It is a necessity.

The language it consists of is entirely optional.

[Typical_Whitey]

The Libyan war is an illegal war that the Congress should remove 100 percent funding immediately. The President cannot be allowed to violate the law. Remember Bush went to Congress to get the authority to go into Iraq and Afghanistan. Where are the WAR protestors? Are the Democrats bombs humanitarian?

[Drill Thrawl]

War is Peace

Freedom is Slavery

Ignorance is Strength.

- 1984 George Orwell

[Typical_Whitey]

Bush was met daily with media bombardment, accusations and the liberals demonstrating at his home, at the WH and everywhere he went. Now we know those astro turf anti-war people were not anti-war at all they were just anti-Republican.

[popdonnelly]

The Administration’s argument is so specious, so far removed from reality, that it doesn’t deserve comment. The people who deserve comment are his creepy followers, who would jump all over a Republican who did this.

[tobyhill]

Of course it's not worth a hill of beans but it is law and either Obama needs to go to congress or congress needs to cut off funds immediately.

[rollo tomasi]

"The Executive has no right in any case, to decide the question, whether there is or is not cause for declaring war; that the right of convening and informing Congress, whenever such a question seems to call for a decision, is all the right which the Constitution has deemed requisite or proper."-- James Madison, some dude who obviously does not understand the Constitution, but think he does.

"The whole powers of war being, by the constitution of the United States, vested in Congress, the acts of that body can alone be restored to as our guides in this inquiry." Talbot vs. Seeman 1801

What NATO Country did Lybia's army invade by the way?

Thomas Jefferson, another figure who did not understand the Constitution weighed in on Executive Power's ability to make war by stating:

“As the executive cannot decide the question of war on the affirmative side, neither ought it to do so on the negative side, by preventing the competent body from deliberating on the question.”

Remember Jefferson's mindset concerning his Presidency and Tripoli? Every decision to cross the line and engage offensive maneuvers came from Congress. Why? Because Jefferson understood that ONLY Congress authorized the use of force when attacking a foreign entity.

[Hoodat]

Let's have a look at Obama's original letter to Congress, shall we?

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

Baraq Obama - March 21, 2011

He believed it applied three months ago. The truth simply is not in him.

[Loud Mime]

Look at the traffic on this young thread. People are getting angry at the PrezZZZZero.

I wonder if he’s asking for this trouble so he can claim victim status?

[fluffdaddy]

I haven't missed any points; you never had one in the first place. Of course the Dems are hypocritical, and in other news, dogs slobber. They were wrong before and they're right now, at least about the President's constitutional prerogatives. The charge of hypocrisy has no political weight; tossing it around is an onanistic waste of time.

Where I'm coming from should be perfectly transparent. I get annoyed when ignorant twits trash the separation of powers for the sake of scoring a few cheap points on today's President. Focus on something that matters.

The Libyan adventure is idiotic on any number of levels. Attack it on substance, not the silly procedural point that Obama’s consultation with Congress was inadequate. Do you really think America can be persuaded to care about that?! Process is not where the rubber hits the road. The point here is that Obama’s foreign policy is adrift and subordinated to the UN and NATO. Libya is important evidence of that. Getting upset because Obama arguably hasn't complied with applicable law when there's no way to make him do so is beside the point.

Save your outrage for something that matters.

[tobyhill]

The Libs that bashed Bush all those years could never say that he didn't go to congress and get authorization but there is no defense for Obama because he never even went to congress.

[Nachum]

I wonder if he’s asking for this trouble so he can claim victim status?

I don't believe that is his M.O.

If past experience is anything to judge by..
- is that there is a compelling European interest to take over Libyan Oil
- That there are supporters of his that are getting big money kickbacks from this deal
- That other Muslim interests with money are being promised the spoils from this operation
- That they are making us pay for everything - Are using this excercise for further 'hollow out' our military - The communists in this country will somehow benefit