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


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.