The GOP Plays Politics With the War Powers Resolution
By John Yoo, The Wall Street Journal
Republicans returned to power in the House of Representatives on a promise to take the Constitution seriously. They appealed to Americans worried about ObamaCare, expanding regulations and the exploding national debt by promising to rein in the federal government. But the Libyan war is tempting Republicans to sacrifice constitutional principle for partisan advantage.
By accusing President Barack Obama of violating the War Powers Resolution, House Republicans are abandoning their party's longstanding position that the Constitution allows the executive to use force abroad, subject to Congress's control over funding. Sadly, they've fallen victim to the siren song of short-term political gain against a president who continues to stumble in national-security matters.
To be sure, it's easy to understand Republican outrage in light of Mr. Obama's blatant constitutional about-face. On Wednesday, the White House released a 32-page report stating that Mr. Obama had authority "as Commander-in-Chief and Chief Executive" to launch the Libyan war because he decided the war advanced "important U.S. interests." Those important interests include limiting "violence and instability" in the region, preventing "an imminent humanitarian catastrophe" and showing the people of the region "that America stands with them at a time of momentous transition."
This from the president who, as a candidate in December 2007, assumed the leadership of the Democratic Party's antiwar base by declaring: "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." Mr. Obama's constitutional position today on war powers is little different from that of President George W. Bush, whom Democrats portrayed as a warmongering dictator.
Mr. Obama has displayed a similar disregard for principle when it comes to the War Powers Resolution. Passed by Congress in 1973 over President Richard Nixon's veto, the law places a 60-day limit on the executive's engagement of U.S. forces in "hostilities" abroad. That limit can be extended to 90 days if the president comes to Congress requesting more time to end the military campaign in question.
In its report, the White House declared that Mr. Obama "is of the view" that he is acting "consistent with" the War Powers Resolution because U.S. forces are part of a multilateral United Nations coalition, are not engaged in "sustained fighting or active exchanges of fire with hostile forces," and do not include ground troops.
But the congressmen of 1973 passed the resolution to preclude the creeping intervention that had led to Vietnam. For them, hostilities would have included a conflict that will cost at least $1 billion, where American warplanes have carried out one-quarter of the coalition's 10,000 sorties, our drones continue to attack Libyan ground targets (including Moammar Ghadafi himself), and U.S. intelligence and command-and-control networks provide the backbone for the coalition war effort. If the Libyan intervention is not a war, one wonders why the Obama administration wasted several critical weeks sitting on the sidelines while it sought the U.N. Security Council's permission.
Congressional Republicans should not try to outdo Mr. Obama in a game of unprincipled one-upmanship. But that's precisely what key GOP leaders have done. Earlier this week, House Speaker John Boehner sent a letter to the White House accusing Mr. Obama of violating the War Powers Resolution. "The Constitution requires the president to 'take care that the laws be faithfully executed,'" he wrote, quoting the president's responsibilities under Article II of the Constitution. "And one of those laws is the War Powers Resolution, which requires an approving action by Congress or withdrawal within 90 days from the notification of a military operation."
Mr. Boehner's claim ignores the Constitution's fundamental nature as supreme law. As Chief Justice John Marshall declared in the foundational case of Marbury v. Madison (1803), the Constitution is "a superior paramount law, unchangeable by ordinary means," and any act of Congress "contrary to the constitution is not law." If the Constitution gives the president the executive authority to use force abroad, Congress cannot take it away. Surely Mr. Boehner agreed with this proposition before the current president took office. He, for instance, never claimed that President George W. Bush's exercise of broad executive powers in the war on terror violated the Constitution. Nor does he appear to have thought that legislative authorization of the Afghanistan and Iraq wars was constitutionally necessary in 2001 and 2002.
Not to be outdone, House Republicans Roscoe Bartlett, Dan Burton, Howard Coble, John Duncan, Tim Johnson, Walter Jones and Ron Paul joined with Dennis Kucinich and other Democrats this week and filed suit in a D.C. federal court seeking to halt U.S. military operations in Libya. They may see themselves as purists, but they are not demonstrating fidelity to the Constitution by launching a legal effort that they know to be utterly futile.
In 1999, then-Congressman Tom Campbell brought suit in the very same court against President Bill Clinton for launching the Kosovo air war without a declaration of war or authorization from Congress. The court dismissed the case because individual congressmen do not have standing to sue the president when the legislature as a whole has failed to act. Judge Laurence Silberman wrote separately that the exercise of war powers was a "political question" for the president and Congress, not the courts. The Supreme Court has consistently turned away every case disputing the president's decision to start wars abroad, and there is no reason to think it will change its ways now.
Lawsuits only distract attention from the real weapons that Congress has to get its way and hold a wayward president accountable. If House Republicans are truly interested in ending the Libyan war, they can cut off all funds for military operations. They can withhold money for other military programs or other spending proposals dear to the administration. They can also refuse to lift the debt ceiling until Mr. Obama orders the end of the conflict or gains congressional support.
Finally, if House Republicans are serious about ending U.S. military operations in Libya, they can begin the process of impeachment, one of the real tools intended by the Framers to counter executive adventurism. But holding hands with isolationist Democrats out of political convenience is no way to defend the Constitution. 6/17/2011