Barack Obama

Obama's Grotesque Flip-Flops on Congressional Authorization for War

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The imperial constitutional law professor. |||

As Robby Soave noted this morning, President Barack Obama has told Congress he doesn't need its approval for his new three-year military plan to defeat ISIS, thank you very much. Such is his disdain for the War Powers Act (actually titled the War Powers Resolution)—which states that the commander in chief may only initiate armed hostilities in the absence of a war declaration or specific statutory authorization when there is a "national emergency created by attack upon the United States, its territories or possessions, or its armed forces"—that Obama announced his intention to disregard it in an anonymous White House statement last night after he met with congressional leaders:

"The president told the leaders that he has the authority he needs to take action against ISIL in accordance with the mission he will lay out in his address tomorrow night," the statement said in part. It added that he would "welcome" congressional support.

Imperious enough for you?

Well, that settles it! |||

Andrew Rudalevige, a professor of government at Bowdoin College, has a couple of excellent posts on Obama's legal rationales over at The Washington Post, from today and Aug. 20. The prof's latest conclusions:

the WPR gives president authority to use force — in advance of "specific statutory authorization" or declaration of war — only in the case of "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." The president's Sept. 8 letter talked about defending the Haditha Dam and preventing "endangerment of U.S. personnel and facilities and large numbers of Iraqi civilians." These are certainly good things to prevent, but also not within the letter of the WPR's requirements.

Rudalevige then turns his legal analysis to another possible rationale, the Authorization for Use of Military Force Against Iraq Resolution of 2002:

[T]he authorization is for the use of force against (the state of) Iraq, rather than in Iraq. The Security Council resolutions referred to deal with weapons of mass destruction; with "repression of its civilian population"; and with "threatening its neighbors." The Islamic State may be doing some of these things, but Iraq itself is not; indeed, the threat to the United States from Iraq's government seems to be from the latter's incompetence. Potential attacks within Syria's borders seem even more removed from the authorization's intent.

The Obama legal team may be turning instead to the prefatory clauses Congress included to justify the resolution. One says, for instance, that "the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations." Another claims that "the President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States."  These are indeed quite sweeping statements — but unlike the authorizing language, or for that matter the broad 2001 AUMF, the "whereas"-es do not convey statutory authority.

You see, this time it's different. |||

In last year's run-up to what once seemed like inevitable war against Syria, the president made what can be interpreted as an incoherent claim: that he had enough legal cover to start bombing Syria, but that he would nonetheless seek congressional approval. When that approval was not forthcoming, the president decided on a diplomatic solution instead. But note how he treated the congressional-authorization question one year ago today:

[E]ven though I possess the authority to order military strikes, I believed it was right, in the absence of a direct or imminent threat to our security, to take this debate to Congress. I believe our democracy is stronger when the President acts with the support of Congress. And I believe that America acts more effectively abroad when we stand together.

So either the president no longer believes these things, or he finds such beliefs to be an untenable hindrance in the waging of his latest war. At any rate, as in his more blatant nose-thumbing of Congress over U.S.-led regime change in Libya, Obama's position on the constitutionality of war is essentially the opposite of what it was when he first sought the presidency. And it is important here to stress that Sen. Obama's more humble conceptions of executive-branch latitude was an essential selling proposition of his candidacy in the first place.

Our nation turns its lonely eyes to James. |||

Yes, congressional involvement gums up the war-works. But that was part of the original constitutional design. Here's how Prof. Rudalevige puts it:

James Wilson, one of the advocates for a strong presidency in the Constitution, nonetheless reassured his state ratifying convention in 1787: "This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large…."

Now one key question is: Which of the 140 members of Congress who urged Obama to seek a congressional vote in 2013 will do so again in 2014, when the winds of public opinion are blowing differently?

After the jump, read the relevant passages from Obama's retrospectively damning 2008 interview with the Boston Globe on questions involving executive power.

In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites—a situation that does not involve stopping an IMMINENT threat?)

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.

As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that "any offensive military action taken by the United States against Iran must be explicitly authorized by Congress." […]

Does the Constitution empower the president to disregard a congressional statute limiting the deployment of troops—either by capping the number of troops that may be deployed to a particular country or by setting minimum home-stays between deployments? In other words, is that level of deployment management beyond the constitutional power of Congress to regulate?

No, the President does not have that power. To date, several Congresses have imposed limitations on the number of US troops deployed in a given situation. As President, I will not assert a constitutional authority to deploy troops in a manner contrary to an express limit imposed by Congress and adopted into law.

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  1. Per CNN, Obama will apparently be asking Congress for the authority to arm and train “moderate Syrian rebels”.

    He cannot possibly be that stupid, can he?

    1. We haven’t created enough scary terrorists yet, needz moar scary terrorists!

    2. “He cannot possibly be that stupid, can he?”

      I don’t think it’s actually pure stupidity (or at least not direct stupidity). I think it’s a type of cognitive bias. If any example of arming the rebels involves Republican leadership then it doesn’t apply to him. His implicit assumption (seemingly shared by a large chunk of the Left) is that Republican stupidity was the ultimate reason of why it backfired, not the actual event.

      It’s really just another example of Principals Over Principles. The Left truly believes that when a policy they support fails, it’s not the policy at fault it’s the Leadership. No matter how bad the failure, the correct Leadership would have been successful.

      Ergo, there are still plenty of Lefty Socialists in the world, even though the failures of Socialism have been remarkably consistent and spectacular.

      1. You know who else had a leadership principle or F?hrerprinzip.

      2. Politicians and statists are like astrologers. They want the jargon, the books, the computers, and all the other accroutements of science and engineering without the hard work.

        They get their leadership skills from movies, barking orders like actors from a script, without any awareness of what they are pretending to simulate.

        Obama’s specific problem is that he shot his wad with Obamacare, and too soon at that, so now he has several years to go with nothing to do.

    3. He cannot possibly be that stupid, can he?

      He was referring to the San Diego PD.

  2. In fairness Matt, this isn’t a flip flop or at least a new one. Obama went to war in Libya illegally and said he would if he wanted to in Syria.

    Obama has totally ignored Constitutional limits on his powers for his entire administration. Given that, it is hard to really call this a flip flop. It is just who he is.

    1. Obama IS flip flopping.

      He flipped when he ramped up in Afghanistan early on in his presidency.

      He’s been flopping ever since.

  3. “national emergency created by attack upon the United States, its territories or possessions, or its armed forces”

    Well, using Commerce Clause reasoning, any hostilities in the world that may possible create an emergency allow the president to initiate hostilities.

    Right?

    1. But the Commerce Clause only gives Congress limitless power…

    2. So what you are saying is that even though, the hostilities all seem to be intra-Iraq fighting, it still affects the entire world violence market?

      So if ISIL wasn’t fighting Iraqis, they would be fighting the US somewhere?

      I like your thinking.

  4. You know who else is going to say you know who else believed he had the unilateral authority to initiate armed hostilities?

    1. Me too!

      Also, I’m a firm supporter of gun control, as long as, I get sole authority to control the guns.

  5. President Barack Obama has told Congress he doesn’t need its approval for his new three-year military plan to defeat ISIS,

    If he plans to pay for this expedition with his own money, that could be true.

    1. That is not fair. Bush never once went to war without getting Congressional Authorization. Going to war in violation of the law is what Obama and Clinton did, not Bush.

      1. Well, the scary terrorists aren’t doing their jobs. Bush had really scary terrorists who flew planes into stuff.

        All Obama’s got is this beheading video.

        Obama’s scary terrorists are lame. Is that Obama’s fault?

        If Obama’s scary terrorists where scary enough, he could get congressional approval. But since he can’t, he has to act on his own. Poor guy always having to act on his own because do nothing congress, full of peanut gallery Rethuglicans who want the terrorists to win.

        1. Don’t worry. They will get lucky and hit us again one of these days. Not like they are going to quit trying or anything.

          Of course, doing anything about it will still be wrong, horrible and against all that is good and true.

          1. No, doing the wrong things about it will be wrong.

      2. It’s totally fair, congress or not it was a dumb idea. The magic of democracy does not make the foolish into the wise.

        1. Clearly, either way, Paul was right.

        2. It does however make it legal. And that is kind of essential foolish or wise.

      3. Wasn’t about getting approval. It was about going at all.

  6. Did Obama get us into a war that caused a recession? You wingnuts forgot about Boooshhhh!!!!!!

    /Shreeky

    1. It is not illegal as long as its smaller than the war BOOSH started.

  7. Well ISIS did kill an American taxpayer so I think Obama is clear here under threats to possessions.

  8. Even militant lefty Ted Rall doesn’t buy this:

    http://rall.com/comic/no-protection

    1. Rall is a loathsome nutcase. But he is a consistent loathsome nutcase. He has been all over Obama for a while.

      And isn’t that ape like portrayal of Obama a bit “racist”? One can only imagine the kittens that the media would have if anyone but a card carrying leftist did that.

      1. Actually DKos gave him a lot of shit about that a little while back. I guess if you criticize The Anointed One too much not all the socialist fervor in the world immunizes someone from spurious racism charges.

    2. That comic feels… racist.

  9. I guess it is “legal” as long as Congress keeps paying those defense bills.

    1. “Congress” isn’t paying for shit.

  10. So, what would happen if ISIS hired a US lawyer to challenge the president’s claim of authority to order airstrikes in court? Rejected to lack of standing, or being foreign?

  11. When this came up last year with Syria, I had the pleasure of discussing presidential war-making authority with somebody who claimed that the War Powers Resolution was itself a specific statutory authorization for war; basically an open-ended AUMF. Libya wasn’t unilateral military action because Congress authorized it forty years prior! Mendacity knows no bounds when the honor of TEAM is on the line.

    1. So everything Bush did was 100% legit. Boom.

  12. If only we had a piece of paper “severely limiting” government, and what they could do. Cause, you know, “anarchy is chaos and all (a typical fallacious response)”. That’s why the minarchist position is nonsensical. The experiment of limited government has already failed numerous times. Why ignore the chaos that is around you?

    It must be, somehow those dudes in fancy suits and the bureaucrats magically know how to deal with things they know nothing about. Central planning and control of everything is a horrible failure, until ROaDZ and DeFenCe and the POLeeSe too!!!

    With socialized services, there is no economizing and the voices of individuals in the market is non existent. Those who work for the state do not face consequences, nor have any input from market forces and even price signals. Resources are wasted, and there is gross inefficiency. Computers, watches and shoes which are unregulated and untouched by politicians do not face crisis. While the DOD is more expensive and less effective, their involvement in housing, education, and healthcare result in higher prices and market distortions. Also their harboring if central banking that funds all of this, is detrimental to liberty and individuals in an economy.

  13. The constitution has eroded since its founding. More and more folks such as the president and congress find it much easier to do nowadays, and will forever chip away at it until it is gone.

    The state is violence. You can not limit it. For one to impose the state on others against their will, is to impose slavery upon them as well. Be a real libertarian. Support libertarian anarchy. :0)

    1. College was fun.

  14. “As Robby Soave noted this morning, President Barack Obama has told Congress he doesn’t need its approval for his new three-year military plan to defeat ISIS

    Actually, he said,

    “President Obama will announce later today his strategy for a long-term campaign to defeat ISIL. The battle plan will include airstrikes against ISIL targets in Syria”

    Which is weird, because his source (NYT)? said this =

    “”the threat from ISIS has changed both the American political climate and his calculations.”

    Justin Amash, fortunately seems to be taking the Artists Formerly Known as ISIS seriously:

    ” Rep. Justin Amash (R-Mich.) on Twitter:
    WH says lots of untrue things. RT @AP: BREAKING: White House says Obama has authority he needs to take action against Islamic State group.

    Ohio State? THE Ohio State?

    President says ISIL – NYT says ISIS! Rico Suave say ISIL – Matt Welch say ISIS -….

    lets call the whole thing off.

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