Obama, the War Powers Act, and Constitutional Backwardness
Posted by Anthony Gregory on May 20, 2011
Today is sixty days since Obama began bombing Libya. Under the 1973 War Powers Act, he has until the end of the day to get Congressional authorization. Presidential supremacists such as John Yoo believe that the War Powers Act is unconstitutional, in that it allows Congress far too much power over foreign affairs. They think the president can obey the letter of the law by ending the war very briefly, and then starting it back up again, or, better yet, he can simply declare the War Powers Act unconstitutional and continue business as usual.
Yet there is another take on the Act, one that we rarely hear in the mainstream media: Yes, the Act is unconstitutional, but not because it gives Congress too much authority. Rather, it is an unconstitutional usurpation of Congress’s sole authority to declare war. If he is not responding to a direct attack, the president has no legal right to deploy troops or bomb foreign countries. And we know that this war has nothing to do with national security, as the administration itself has denied there was any impending threat to Americans in the United States.
Obama was right in 2007 when he told the Boston Globe: “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.” That was back when he was a candidate, touted as a constitutional scholar.
How is it that our constitutional understanding so frequently gets flipped on its head? Yoo and his ilk are simply the rightwing versions of the leftwing “living Constitution” crowd. As the latter see it, if the Constitution does not explicitly forbid a given federal action, it must be legal. Thus Congress can’t outright ban speech (although liberals are weak on commercial and political campaign speech) or authorize the most nakedly egregious violations of our privacy as protected by the Fourth Amendment, but pretty much every thing else is fair game. The neocon rendition of this reasoning is as follows: The president can do whatever he needs to at wartime, bombing whomever, torturing and detaining which ever people he deems necessary, even ordering the summary execution of anyone on Earth. He can spy on our communications without a warrant. He can overturn the principles of habeas corpus. The Constitution does not explicitly deny the president these powers, and any legislation that does must therefore be unconstitutional.
Of course, this is utterly backwards. The Constitution was unique in that it brought into existence a government of enumerated powers. Only those powers expressly granted to Congress or the president are valid. And the Constitution specifically vests Congress with the power to declare war, despite what the neocons say, while it does not give Congress the general authority to regulate the economy or force us to buy health insurance, despite what the left-liberals say. The presidency, for its part, was meant to be a rather humble office, nothing like a king. Yet America’s presidency is more powerful than any king in history. It claims authority over the whole globe. Has any earthly authority ever declared itself so powerful? The U.S. presidency resembles a Caesar, a Fuhrer, a planetary emperor. Under the original Constitution, it was supposed to be very modest, carrying out the few laws Congress was empowered to pass, vetoing bills, accepting ambassadors, leading the military in the few constitutional wars actually declared by Congress, and a handful of other small functions.
Will Obama be violating the Constitution if he continues to bomb Libya without Congressional permission? Of course. Has he already violated it, despite the 60-day grace period the War Powers Act grants him? Of course. Would it be legitimate for Congress to authorize him to decide when and where to declare war—as it did with Bush regarding Iraq in 2002, and concerning the 9/11 attackers in 2001? Of course not. Indeed, under the Constitution, properly understood, Congress hasn’t correctly declared war since the 1940s, and the presidency has been a rogue office for the better part of its existence. Yet today even the most tepid restrictions upon the presidential dictatorship, such as the War Powers Act, are too restrictive for either the Democratic warmongers or the Republican neocons. For all those Republicans running for the presidency today, claiming they more than Obama or their GOP comrades can understand and defend the Constitution, here’s a question for them: When do you think Obama should be impeached for his illegal war in Libya?
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milly
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Matt42mclendon
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Adame Frances
