“This” in your last sentence is extraneous. T’ain’t nothin’ new wrt to this issue. The Libya episode was very similar to the Serbian bombing under Clinton. And the Grenada adventure by Reagan (although that was much shorter.)
I’m going off memory, but I believe Obama stated the WPR did not apply because he was not introducing Armed forces into hostilities - thus didn’t need to be compliant with it. Bombing a country doesn’t count because they are not…apart of the hostilities because they are so high up?? Something like that.
I obviously don’t agree and somewhat doubt my recollection is correct. But I think it is.
IIRC, the OLC’s argument was that the limiting clause in the WPR (the one I posted earlier) (50 USC 1541(c)) is not actually a clause that limits deployment powers, but is instead a statement of policy by Congress. So, what I would read as a limiting clause, the OLC doesn’t. But I’ll have to go re-read the memo.
They get reelected because they don’t do dick.
When someone does something, there is a good chance they will do the wrong thing. And there is a near certainty that even if they do the right thing, it will also have some negative consequence or side effect. These things will make them a target for criticism from the people that don’t do dick, who can say they wouldn’t have done that thing, or would somehow have done that thing without incurring the negative side effects. And if person doing things gets very, very lucky and do things completely right, then the people who don’t do dick can come along and say that of course they supported exactly that thing all along.
Thus, you can maintain a certain level of popularity by not doing dick. Not super-popular, but popular enough.
And that is why 90% of congress does not actually want to enforce the WPR: it inhibits their ability to distance themselves politically from the military action if/when some part of it goes wrong.
Ok, I skimmed the memo. It’s not letting me copy and paste to this board (I don’t know why). Here’s a link:
So, there’s a few arguments in there:
- The limiting clause in the WPR doesn’t limit the President’s constitutional powers because the WPR expressly states later that it doesn’t limit the President’s constitutional powers. The limiting clause is a statement of policy. And then they cite historical deployments (which is, IMO, a gloss argument) to show that the limiting clause is not really a limiting clause.
I don’t agree with this argument, since it reads the limiting clause wholly out of the statute, and in my view, that’s not proper statutory construction. But, I’m not anyone important, so who cares what I think?
- Congress still has the power to declare war, but the Libyan intervention is not a war in that sense – because it’s limited in scope and won’t involve ground troops (because gloss) and even if it did involve ground troops, it still might not fall within Congress’s war power (because gloss). And since the WPR doesn’t alter the balance of powers, then the Libyan deployment falls under the C-in-C’s inherent powers.
So, yes, that’s the argument you reffered to CoolHandCox. I don’t agree with this interpretation of the war powers clause, but I’m not in the OLC.
- The C-in-C has inherent power to deploy where US security interests are at stake, and the US interests were: (a) preserving the credibility and effectiveness of the UN and (b) ensuring regional stability in the Middle East. How do we know that the C-in-C has this inherent power? Answer: gloss. (Although this doesn’t quite read to me like a gloss argument – I’ll have to peruse in more detail later.
You betcha.
While all Congresses are pretty whiny and shitty, the institution does seem to have gone even further downhill lately.
As I understand it, this is ultimately the issue. Neither side, Congress or the Executive, wants to get in a showdown over war-making authority. If the matter wound up going to the courts, the WPR would likely be declared unconstitutional, and it’s unclear what would follow that. Would Congress lose what little de facto power it has retained in this area? Would the President need to get specific, prior authorization (or even an official declaration of war) before initiating almost any military action, as a straight reading of the Constitution might imply? Instead, both sides just live the compromise status quo: Congress makes vague threats, and the President keeps them vaguely in the loop. Can’t imagine this will last forever, but nor do I see it changing anytime soon.
As an aside, I’d point out that my amateur legal analysis leads me to believe that the root of this dilemma lies in the fact that the U.S. Constitution is almost-but-not-quite entirely archaic when it comes to war and the military, requiring quasi-legal workarounds. It’s a problem.
I agree, and I’d love to see the WPR formally amended into the Constitution. I think it would be an order of magnitude better than what we’ve got now. But again, Congress won’t do that because they don’t want to actually have to take responsibility for wars.
Because the War Powers Act was enacted in 1973. Remember? The Vietnam War. People were sick of war. 50,000 dead AMERICANS. The people didn’t want any more dead AMERICANS. Dead other people? Okay, but NO dead 'MERICANS, okay?
So, as long as there are no DEAD AMERICANS, people don’t care, and Congress doesn’t care either. Dead Ay-rabs, okay there, and if Khadaffi gets a knife shoved up his ass, all the better. So bombs away! Bomb who you like, Mr. President. And drone all you like, just NO DEAD AMERICANS.