I’m pretty sure the UNPA is covered under WPR: (a)(1):
It’s rather convoluted language, but I interpret that to mean if an existing Act allows specific circumstances giving the POTUS limited authority to commit forces, that authority is not rescinded by the WPR.
I read that 3 times and couldn’t understand it. I will defer to one of our legal experts.
If only I could borrow Bricker’s zircon-encrusted semantic/legalistic parsing tweezers, I’ll bet I could tease out a definition that regards wholesale massacre as a threat to “international peace and security”.
I apologize for my extended absence from this interesting thread. That means that in order for an act to fully authorize the use of force in accordance with the War Powers Resolution, the act has to explicitly state that it is authorizing force. Think of it as the “Simon says” construction.
By simple logic, any act that precedes the War Powers Resolution would not satisfy this requirement.
I’m sure your opinion is better than mine, but I’m having trouble getting to your second paragraph by way of your first. Why wouldn’t a preceding act like the UNPA, which specifically authorizes commitment of US forces to enforce UNSC resolutions satisfy the WPR requirement?
I guess I’m asking what you mean by must “explicitly state that it is authorizing force”, such that the UNPA doesn’t fit that description?
[QUOTE=Ravenman]
I apologize for my extended absence from this interesting thread. ** That means that in order for an act to fully authorize the use of force in accordance with the War Powers Resolution, the act has to explicitly state that it is authorizing force**. Think of it as the “Simon says” construction.
[/QUOTE]
(I bolded). And I agree. One of the reasons for the WPR was that it was impossible for Congress to end a war. A brief summary, but Congress tried and tried to end Vietnam, but they couldn’t. Of the many ways they tried, one thing in particular was they repealed the clear authorization of force for Vietnam. Seems like that should have ended it, but courts said you don’t really want to end the war even though you repealed the authorization to use force because you’re still appropriating money towards the war. ie, the courts inferred Congressional intent to authorize the war through appropriation bills.
So, this section of the WPR, quoted by xenophon41, is saying you can’t infer intent for Congressional approval of force from anything other than an explicit authorization of the use of force.
However, the President has 60 days to get that approval, unless Congress uses a concurrent resolution to end it before the 60 days is up. Basically, the President has a 60 day “twilight zone” where he can use military troops.
Take, for example, the Iraq war resolution. At the very bottom of the resolution is a provision which states, “Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” That constitutes the “Simon says” which makes the use of force authorization in the Iraq war resolution have legal effect under the War Powers Resolution.
The UN Participation Act does not contain such a phrase, so the War Powers Resolution, if taken at face value, states that authorization to use force may not be implied from the UN Participation Act.
OK, so not only does an act have to authorize commitment of forces, it has to do so in reference to the provisions of the WPR? Which would necessarily nullify anything written prior to the WPR’s existence.
Got it. So I guess we’re back to whether (d)(1) allows an exception for UNSC resolution enforcement…
As long as the action is an emergency response to a nation attacking or threatening to attack the US. Let’s keep that in mind lest we overlook that important reason why the action in Libya violates the WPR.
My humble opinion is that the clause is almost completely meaningless, because: (a) a law cannot change the constitutional war powers of either branch of government, (b) there are circumstances under which everyone would agree that a treaty would bring with it an obligation to take swift military action to defend an ally against an attack, and (c) there are circumstances under which it is ambiguous whether a treaty would obligate the United States to take military action, such as the UN Charter.
That particular provision sheds no light on any of those matters that would help resolve issue number (c).
One last lawyer question then (and thanks for your help here, Ravenman), does this lack of clarity mean the question is not resolvable without judicial interpretation?
That would give the President Constitutional authority. We know the President has inherent authority under the constitution to defend the nation (the WPR recognizes that). I’d also go further and say he has constitutional authority to rescue American citizens abroad (but that’s not listed in the WPR nor relevant here).
What I was suggesting earlier with the UN Resolution is that the resolution gives the President statutory authority to use the troops (just as if Congress authorized the use of force). Treaty/Statute having the same force of law under the constitution. ect. ect. We’ve already covered why we disagree. The WPR itself is conflicting if it intends to alter existing treaty (UN/NATO) obligations or pre-1973 statutory (United Nations Participation Act) reporting/approval procedures or not. So it’s all debate until a court says something.
In practice, no matter what circumstance the President has authorized troops, he’ll inform Congress, and then the 60 day clock starts ticking. This has been going on for 38 years since the WPR passed.
If that’s true, then we need a new statute post haste.
Not really. Adherence to a treaty has to be by way of legislation. And the SCOTUS has been clear that in a conflict between a treaty and statute enacted after the treaty, the statute is primary.
I certainly agree that this is all an intellectual exercise, as presidents have been doing whatever they damn well please, and Congress has moaned and groaned and done almost nothing.
I wonder if this trifling matter will ever see the number of posts that the “desecrating the Eucharist” thread is seeing. I know that’s a much more important matter, but one can still hope.
It’s only true in the sense that President’s have been relying on UN resolutions. But more to show you there’s no clear, “he’s violating the constitution and should be impeached” vs. “he has clear legal authority and everything is a-ok.” Neither is true. Obama is acting like all previous Presidents have when in this “twilight zone” and we’ll just see if Congress approves, and if not, whether Obama pulls the troops when the 60 days expires.
But this just brings us full circle again to WPR (d)(1): “nothing here is intended to alter previous treaties.” So WPR is primary, but acknowledged and left alone the previous treaties (ie, the UN, which takes away some of Congress’ war powers).
Interestingly, the WPR was written because that 1973 Congress knew future Congress’ would moan and groan and do nothing in this exact Libyan type situation. That’s why after 60 days the President is presumed not to have Congressional approval (ie, fills the twilight zone with disapproval; which comes from the fascinatingYoungstown Sheet case and addressed J. Jackson’s powerful concurrence). So, Congress doesn’t have to do anything and yet they can disapprove of the President’s actions. Brilliant understanding of themselves…taking automatic action (disapproval) after 60 days, because we know we wouldn’t actually get together and get it done if it wasn’t automatic.
There is real things they can do. (1) Concurrent resolution and if it’s ignored take it through the courts to see if WPR is constitutional; (2) Don’t fund it. Complaining on TV is neither of those; not that there’s much complaining by Congress to my knowledge. I’m guessing they’ll extend the 60 days if needed, then approve if needed.
We are spporting a revolt against a brutal dictator in Libya…so whay are we not spporting a similar revolt in Syria?
From what I hear, the Libyan rebels are big supporters of Al Queda.
Wouldn’t it be ironic if we wound up bringing an Al Queda backed regime to power.
Has Syria degenerated into violence and military action against civilians?
The news I can find only talks about a peaceful revolution via Facebook.
Technically we’re not backing any particular political group in Libya, we’re opposing Quadaffi’s attempt to slaughter civilians. As for why not Syria… well, nobody ever claimed that we’re particularly consistent. When Syria exterminated the town of Hama, flattened the ruins and bussed people in to show them the price of disobedience, the rest of the world pretty much went “meh”.
The people who even know about Hama these days is somewhat limited for such a massive atrocity.
Syria is not remotely comparable and claiming that the anti-Qaddafi rebels are supporters of Al Quaeda is grossly unfair.
Yes and no. They don’t always get UNSC resolutions. I certainly will give kudos to Obama for doing that. But I grade on a curve, and I had higher expectations for Obama when it came to adhering to constitutional principles. Not that I would have voted for McCain, but that was one reason I was happy to vote for Obama instead of my usual “lesser of two evils” choice.
Bosstone: Just watch the news-- civilians are being killed in Syria.
Perhaps we need a no fly zone over the entire Middle East and North Africa…
Do you want the mature honest answer?
A decision to engage is based on multiple factors.
How bad, or how potentially bad, is the atrocity? In the case of Libya Qaddaffi was making statements that made clear that a wholesale slaughter was intended and we know that he is crazy enough to do it. In Syria no such statements are being made and no one expects that Syria will murder thousands of their own. Shoot a few dozen unarmed protestors, jail and torture a few hundred … oh yes. But not wholesale slaughter. More a retail operation. Please note: wholesale slaughter (actual or imminent) is pretty much required but is not sufficient, as Finn’s post makes clear. The other factors below must also be considered.
Will inaction or action potentially make a difference to our selfish national interests? This question has several aspects to consider, including regional balances of power, resources, and the desired response or nonresponse of allies, both long standing partners and regional “allies”. No one likes Qaddaffi. Not our partners and not other MENA nations. (Okay, Chavez and Commisar … that’s it though.) The Arab League was asking for help. Taking him out does not adversely effect any balance of power and after having stated that he must go the likelihood of his not returning to past terror ways became very small. (Libya’s oil resources are not quite big enough to consider as factor.) Syria OTOH has friends in the region. No action we could make would likely decrease the numbers of civilians killed. OTOH acting would without doubt leave a regime in power that was even more actively hostile to us and to working with us.
How does it serve our stated values? And how much hypocrisy can we get away with? If we can get away with the hypocrisy of not commenting as Saudi tanks rolled in across a causeway then we can get away with this much.
What are the potential costs in terms of lives and money? Our likely costs of both in Libya is nonzero but, on the scale of a military operation, not huge. Taking on Syria? Oh that could get very messy. Very.