I’ve never seen this suggested before, although I cheerfully admit this may be owing to my abysmal ignorance rather than the novelty of the idea. The guy here believes that it is.
What puzzles me is that if it is so “clearly unconstitutional” why has this Administration (as well as previous ones) tamely submitted to it rather than getting it struck down by SCOTUS?
BTW if this admits of a ready answer please frogmarch it directly over to GQ.
I think the WPA act is unconstitutional.
Incidently if you type in “War Powers Act is” Google prompts you with “Unconstitutional” and “Constitutional”.
The reality is, no President is going to seriously challenge it in court, and no Congress is actually going to take the step of either cutting off funds to troops in Combat or impeaching the president.
So the President pretends it’s constitutional and congress pretends it isn’t violated more often than Tila Tiquela at a drunken frat party.
If getting rid of Khadafy is in our national interest, Obama should go to Congress, make a speech as to why this is so, and then squash the guy like a bug. Instead, he just lets the thing flounder, Gasoline is at $4.00 a gallon, and it drags on and on.
^^This pretty much.
I do not think either side wants to put it to the test to be decided one way or another. There is a big question mark regarding the constitutionality of the WPA but it could go either way. It suits both sides to leave it in limbo and then both sides can claim they are right and the other side is wrong. Politically it works for them.
The current Supreme Court has been pretty free with defining Executive power broadly. Even if Congress wanted to test it in the court I doubt they’d want to do it with this court.
Well, you’re a little off here. No Administration has submitted to the constitutionality of the War Powers Resolution. Minor illustration: the WPR requires notification of Congress each time troops are put in harm’s way. Every notification letter sent to Congress has been submitted “consistent” with the War Powers Resolution – not “in accordance with” the WPR, not “as required by” the WPR – just consistent. As in, the President doesn’t actually have to recognize the legality of the WPR, but may choose to act in a way that is not inconsistent with it.
There is no chance in the foreseeable future that any court challenge to the WPR will result in a substantive decision by the courts. The matter of war powers has long been an arena left for the legislative and executive branches to duke it out in, and I see no reason why that would change.
I think the WPR is kind of absurd, but I’m not sure there is a one-size-fits-all policy to be had on the balance of the war powers between the legislative and executive branches. The WPR essentially cedes ground to the President to start any war he wants – but god forbid he carry out that war for more than 90 days!
In reality, behind closed doors, I think most members of Congress would sometimes be somewhat relieved that the president feels he is able to do things with the military without coming to Congress first; but other times they want Congress to make the decision whether to do to war. Invade Grenada, or bomb Libya? Why would Congress want to authorize that? If it goes south, just blame the President.
I don’t believe there is a single answer to where the lines on the war powers should be drawn – I think of it more as a game of tug-of-war in which each branch is competing with the other, and sometimes one branch has the upper hand, sometimes the other does. C’est la vie.
MORAL KOMBAT! Legislative Branch vs. Executive Branch, Battle 1. Ready? FIGHT!
I now have the image of a lawyer bashing off the head of another lawyer with his briefcase while screaming “FATALITY!!!”
Here’s another little something!
Obama used Preemptive Strike! A critical hit! It’s super effective!
That’s not quite true. The WPR only allows the President to commit troops in the event of an attack on the US, an authorization from Congress, or a declaration of war from Congress.
It’s actually the big elephant sitting in the WPR room. You’re correct that the WPR cites attack against the US, authorization from Congress, or declaration of war from Congress as the only time the President may constitutionality commit troops to hostilities. Everything else then must be unconstitutional (according to the WPR).
So there’s two realities. Let’s use Libya. Either Obama acted unconstitutionally/in violation of the statute the day he committed troops to Libya (because no attack against US, no authorization, no declaration of war) or there was a constitutional right for Obama to commit the troops to Libya that the WPR does not cite (leaving sec 1547(d)(1) aside). Either way sinks the WPR. If we use your way (the WPR’s way), Congress is in effect validating the President’s (unconstitutional) right to do what he did without their previously authorizing it and every time it happens only strengthens the President’s right to do it. Or, the President, through Supreme Court rulings, already has a constitutional right to commit troops in the manner he did. And statutes cannot take away a constitutional right. Obama stated he had a constitutional right to commit the troops to Libya.
So, by dealing with the reality of the time when the WPR was written (President’s committing troops to hostilities without Congressional approval), Congress did as much as they could with the WPR. But it likely backfired by acknowledging the President could and would act without Congress and Congress validates this by* later *authorizing the President’s actions.
For the record, the President has constitutional powers that the WPR does not explicitly acknowledge (but hints at in 1547(d)); that same section also does try to say you can’t infer the WPR adds gloss (as described above) to the President’s powers…but it really doesn’t work that way; I would say the Supreme Court decides that, not early 1970’s Congress.
I don’t quite agree with this analysis. While I do think Obama violated the Constitution the day he sent forces into Libya, we’re stuck with the notion that Congress can retroactively authorize deployment because of the behavior of previous Congresses. If Obama can get a retroactive authorization, then even though I think this is unconstitutional, I’ll live with it (what else am I going to do?).
However, the claim that Obama seems to be making is that he can deploy troops in non-defensive combat (as you pointed out, his claim for constitutionality) without needing any Congressional authorization whatsoever (retroactive or otherwise), and this I think is blatantly unconstitutional. Unfortunately, the only remedy for this is for Congress to use its powers to force Obama out of Libya or to impeach and convict, and they probably will never do this. And I don’t think the SC will get involved in something like this.
So, since Congress refuses to act, we are now stuck with the proposition that the Executive can invade any country whenever it wants to without any public debate at all (retroactive or otherwise). I find this appalling.
Not disagreeing, but pointing out that retroactively authorizing Presidential actions, done enough times over a long period of time, give credence that the President always had the power to do it in the first place. This is historical “gloss.”** So, leaving the WPR aside for a moment, the President is using the military without Congressional authorization…then Congress says it’s ok or they don’t, but keep funding what the President is doing. This gets into the (one) heart of the famous SC Youngstown sheet case. By doing this, Congress effectively gives the President the power to do it. Now, the WPR did try and do its best to address it, but I believe it fails because it inadvertently sets the stage for the President to act on his own for 60/90 days without Congressional approval (after which Congress attempts to fill the “twilight zone” by automatically not authorizing the Prez’s actions, which is the other heart of the Youngstown case).
It’s not blatantly unconstitutional. It’s arguable. He’s carrying out a valid UN Resolution and he’s protecting American interests abroad (like I said, arguable). These same constitutional arguments have been made by many Presidents and there is SC caselaw to back them up. However, the real question for the WPR in general for the OP, is whether there is any other constitutional powers the President has besides the power to defend the nation against attack (the only one explicitly stated in the WPR). There clearly is.
So it’s Congress’s fault, right? They can also not appropriate funds for wars they don’t agree with. Congress is generally paralyzed as usual, the WPR knew this and ingeniously attempted to fix it (by making inaction = action). But now you’re left with a President disregarding what Congressional inaction means (his actions are not authorized). There’s just no teeth in that part of WPR. The only teeth Congress has is defund or impeach.
** Quote from Youngstown case; Frankfurter Concurrence.
A reasonable point, but let’s get real – that horse is now so far from the barn that there’s no way to rein it back in. Grenada, Panama, Kosovo, Bosnia, Liberia, Somalia, Libya, and probably a few other places that end in vowels that I can’t recall — none of those military actions had a lick to do with an attack on the United States.
(Curiously, the military actions I can think of that were authorized – Lebanon, Iraq, and Afghanistan – are primarily related to countries that end in consonants. So, if I were Iran, I wouldn’t worry about an unprovoked attack – but North Korea, watch out!)
Somalia was theoretically authorized by the AUMF, which is presumably the justification for both Yemen and Pakistan now. Panama, Kosovo and Bosnia received post-facto Congressional authorization (although I think in the case of Bosnia/Kosovo, the authorization was pretty thin). I’m not sure whether there was any post-facto Congressional activity on Grenada. We’ve been in and out of Liberia several times, and I’m not sure which one you are referring to, but some of those times were to evacuate US citizens/personnel (which is a stretch under the WPR, but I think the case can be made).
CoolHandCox, I do have a response/questions for you, but I have to go to work. I’ll see if I can pop back into this thread tomorrow.
One more thing, before I get out of here…
When I stated previously that Somalia was authorized by the AUMF, I was referring to the Bush II/Obama interventions in Somalia, not the Bush I deployment. IIRC, there was a Congressional authorization for the Bush I deployment, but I’ll have to look it up.
I’m not disagreeing with the notion of historical gloss, but I don’t agree with this reading of Youngstown. Frankfurter explicitly states “It cannot be contended that the President would have had power to issue this order had Congress explicitly negated such authority in formal legislation.” And the majority opinion also states that “The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.”
If I understand your argument correctly, you are stating that the gloss covers the Libyan action because of prior Congressional action, which has given the President an implied authority to commit. But, from my point of view, it’s within Congress’s power to revoke that power (which is how I read Youngstown), which they did in the WPR.
AFAIK, and I’m willing to be corrected on this, Congress has given at least a fig-leaf of retroactive authorization for offensive deployments by the executive since passage of the WPR. I cannot find an instance where Congress completely ignored an offensive deployment by the Executive (except in the case of prior treaty obligations). Again, I’m willing to be corrected, and if it is the case that the Executive has deployed in an offensive capacity since passage of the WPR without any retroactive fig-leaf authorization, I’m more amenable to the point of view that the Libyan deployment falls under the gloss in question.
As far as Libya goes, there is no explicit funding authorization. Obama, AFAICT, is using general military budget appropriations to fund. So, Congress hasn’t funded Libya. If they did, I’d be okay with the action (even if I disagree with it on policy grounds).
I don’t see the relevance of the UN Resolution with regards to Presidential war powers. We don’t have any prior treaty obligation with the UN to enforce their resolutions, since we never signed an Article 43 agreement with them. And protecting American interests abroad is an argument that can be made for any action.
Is there other case law you are thinking of then Youngstown? I would be interested to take a look.
On a broader note, even if Congress refuses to assert their power, either through and explicit defund or an impeachment, that doesn’t, in and of itself, mean that the President’s actions are Constitutional (I don’t think you are implying this, I’m just adding it for completeness). The President has a responsibility to follow the Constitution regardless of what Congress does.
The House and Senate passed different versions of an authorization, but none was ever made law. There were UN resolutions, which you may be thinking of.
There were no specific WPR related resolutions related to any of the other countries I mentioned. IIRC, specific invocations of WPR authorities has only occurred for Iraq twice, the AUMF, and Lebanon. Even the current proposals to authorize the actions in Libya do not invoke the WPR.
Thats not true, Obama’s position is that the WPA is constitutional, but that the action in Libya is too minor to count as “hostilities”, so the act isn’t relevant to the current N. African unpleasantness.
Obviously opinions differ on how convincing this argument is, but its an important distinction given the topic of the thread. The current administration does hold the WPA is constitutional, they just don’t think it applies here. This is something from a flip from earlier administrations, who held the WPA wasn’t constitutional, but obeyed it anyways (albeit fairly loosely in some cases), while Obama is saying it is constitutional but (arguably) disobeying it.
First, I was responding to Presidential power in general, however, I now see you were specifically talking about Obama/Libya. Let’s figure out the general first, and then we can apply it to Libya.
General
I’m going from memory, so bear with me. Frankfurter Concurrence Quote: “It cannot be contended that the President would have had power to issue this order had Congress explicitly negated such authority in formal legislation.” Gloss is tricky, the quote I provided in my other post above defines it. Gloss deals with words in the constitution that are vague (e.g. “executive power”) and what they mean. Gloss is a tool to let the President and Congress determine what the Presidents powers are (what do those words in Article II of the Constitution mean). Presidents who openly do things for long periods of time, and that are supported or not questioned by Congress, those things could then be read into the vague words of the Constitution (e.g. “executive power” means the President has the power to rescue troops or citizens abroad). What your quote is saying is, Congress, at some point before gloss attaches, can break the “systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned” by negating the power through* formal legislation. That’s their method to deny the President a constitutional power they don’t think the Constitution gives him. If so, then there is no gloss - there never was. However, once the SC finds a power, say the Constitutional power to rescue, Congress can’t now try and legislate it away, because gloss means it’s a Constitutional power the President always had (i.e., Congress didn’t give it to the President, the President always had it - I incorrectly stated Congress gave it to the President in my post above, that’s wrong and not what gloss means, it’s more profound than that). So, if there’s gloss, Congress can’t take it away by statute, but only by Amending the Constitution (or the SC taking it away by reinterpreting the Constitution).
*
"And the majority opinion also states that “The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” Not that I get excited much about the majority opinion, but it does fall in line with it - through gloss, the President is deriving his power through the Constitution.
The WPR is faulty, in my mind, because it tries to explicitly negate a Presidential power through inaction (i.e. by sitting around for 60 days, Congress can explicitly negate what the President is doing, because inaction = action according to the WPR). I don’t think that’s “formal legislation” enough to explicitly negate. I think there has to be a formal vote, with the current congress, to get their opinion. Anything less is exactly what it is, inaction.
**
Libya**
Presidents have declared it a national interest to carry out valid UN Resolutions because it’s in America’s interest to give teeth to the UN. If we did not, the UN would be much weaker and lose credibility, and that’s not in our interest. Obama said the same thing. He also argues it’s in our national interest to maintain stability in that region. Here is his “Authority to Use Military Force in Libya.” Remember, this is only for the time period of March 20ish to April 6ish where Obama is claiming a constitutional right to commit the troops. Here’s the basic overview:
(emphasis added)
From that memo, here’s his hint that what he’s doing is Constitutional gloss, “This independent authority of the President, which exists at least insofar as Congress has not specifically restricted it…” So, until Congress, through formal legislation, says the President does not have those powers, he’s going to keep doing it…and at some magical point gloss will attach and it will be a constitutional power the President always had. You can read it to see what other cases and situations he cites, ect. for his national security/national interest/enforce UN resolutions powers and determine whether you agree with it or not as it applies to Libya.
Yea, there is caselaw stating constitutional powers the President has that are not listed in the WPR, but I don’t know it off the top of my head. I know he has the Constitutional power to rescue troops/citizens, but can’t cite the case. I will find out later, but I bet some are listed in Obama’s memo.
Right on the latter, wrong on the former: