Tag: constitutional law

White House: ‘We Have Never Been at War in Northafrica!’

Pardon the somewhat trite Orwell reference in the title to this post. But sometimes this administration’s wordgames make it hard to resist invoking our keenest analyst of politics and the English language.

Some months ago, the Obama team began telling us that the Libyan War wasn’t a war—it was a “kinetic military action.” (Go here to watch Defense Secretary Robert Gates try—and fail—to maintain a straight face selling that line to Katie Couric on 60 Minutes).

In April, the president’s Office of Legal Counsel made the (bogus) argument that the president hadn’t violated the War Powers Resolution because the WPR recognized his authority to engage in hostilities for at least 60 days without congressional approval.  We’re now coming up on 90.

Yesterday, in response to Speaker John Boehner’s (R-OH) request, the president issued a new explanation for why he isn’t in violation of the WPR, which requires the president to terminate US engagement in “hostilities” after 60 days in the absence of congressional authorization. And it turns out that, per Obama, not only is the Libyan War not a “war,” what we’re doing in Libya—supporting, coordinating, and carrying out attacks—doesn’t even rise to the level of “hostilities.”

The president’s report states that he hasn’t violated the WPR, because “U.S. military operations are distinct from the kind of ‘hostilities’ contemplated by the Resolution’s 60 day termination provision”:  they don’t “involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof.”

As Jack Goldsmith explains, “The Administration argues that once it starts firing missiles from drones it is no longer in ‘hostilities’ because U.S. troops suffer no danger of return fire.”  ”The implications here,” Goldsmith notes, “in a world of increasingly remote weapons, are large.”

I’ll say: this is an extraordinary argument: The president can rain down destruction via cruise missiles and robot death kites anywhere in the world. But unless an American airman might get hurt, we’re not engaged in “hostilities.”

Put aside the strange argument that acts of war don’t rise to the level of “hostilities.” Given that outrage over the illegal bombing of Cambodia was part of the backdrop to the WPR’s passage, it would have been pretty strange if the Resolution’s drafters thought presidential warmaking was A-OK, so long as you did it from a great height.

As legal arguments go, this is the national security law equivalent of the Clinton perjury defense. It’s the type of thing that gives lawyers an even worse name. Or maybe law professors, because, speaking of Bill Clinton, Obama’s the second former constitutional law professor in a row to violate the War Powers Resolution.

And yet, Obama continues to insist he’s in full compliance with the WPR, and he has no objection to the resolution on constitutional grounds.

God help me, I think I just felt a twinge of nostalgia for John Yoo.  Say what you will about the legal architect of Bush’s “Terror Presidency,” at least he had the courage of his bizarre convictions. When the statutes couldn’t be tortured into complete submission, Yoo would make the case that—whatever the law said—the president had the constitutional power to do as he pleased.  That’s clearly what Obama believes as well, but you’re not going to catch him admitting it.

Congress: The Least Dangerous Branch

That’s the topic of my Washington Examiner column this week. In it, I discuss last week’s budget battle and the failure of “policy riders” designed to rein in the Obama EPA’s attempts to regulate greenhouse gases without a congressional vote specifically authorizing it. The Obama team believes it has the authority to implement comprehensive climate change regulation, Congress be damned. Worse still, under current constitutional law–which has little to do with the actual Constitution–they’re probably right. Thanks to overbroad congressional delegation, “the Imperial Presidency Comes in Green, Too.” At home and abroad, the legislative branch sits on the sidelines as the executive state makes the law and wages war, despite the fact that “all legislative powers” the Constitution grants are vested in Congress, among them the power “to declare War.”

Yet, as I point out in the column, Congress retains every power the Constitution gave it–powers broad enough that talk of “co-equal branches” is a misnomer. Excerpt:

The constitutional scholar Charles Black once commented, “My classes think I am trying to be funny when I say that, by simple majorities,” Congress could shrink the White House staff to one secretary, and that, with a two-thirds vote, “Congress could put the White House up at auction.” (I sometimes find myself wishing they would.)

But Professor Black wasn’t trying to be funny: it’s in Congress’s power to do that. And if Congress can sell the White House, surely it can defund an illegal war and rein in a runaway bureaucracy.

If they don’t, it’s because they like the current system. And why wouldn’t they? It lets them take credit for passing high-minded, vaguely worded statutes, and take it again by railing against the bureaucracy when it imposes costs in the course of deciding what those statutes mean.

Last year, in the journal White House Studies [.pdf], I explored some of the reasons we’ve drifted so far from the original design:

Federalist 51 envisions a constitutional balance of power reinforced by the connection
between “the interests of the man and the constitutional rights of the place.” Yet, as NYU‘s Daryl Levinson notes, ―beyond the vague suggestion of a psychological identification between official and institution, Madison failed to offer any mechanism by which this connection would take hold…. for most members, the psychological identification with party appears greatly to outweigh loyalty to the institution. Levinson notes that when one party holds both branches, presidential vetoes greatly decrease, and delegation skyrockets. Under unified government, “the shared policy goals of, or common sources of political reward for, officials in the legislative and executive branches create cross-cutting, cooperative political dynamics rather than conflictual ones.”

Individual presidents have every reason to protect and expand their power; but individual senators and representatives lack similar incentive to defend Congress’s constitutional prerogatives. “Congress” is an abstraction. Congressmen are not, and their most basic interest is getting reelected. Ceding power can be a means toward that end: it allows members to have their cake and eat it too. They can let the president launch a war, reserving the right to criticize him if things go badly. And they can take credit for passing high-minded, vaguely worded statutes, and take it again by railing against the executive-branch bureaucracy when it imposes costs in the course of deciding what those statutes mean.

In David Schoenbrod’s metaphor, modern American governance is a “shell game,” with We the People as the rubes.  That game will go on unless and until the voters start holding Congress accountable for dodging responsibility.

Obama on ‘Conservative Judicial Activism’

Speaking to reporters last evening on Air Force One, in the context of his upcoming Supreme Court nomination, President Obama warned of “conservative judicial activism.” “In the ’60s and ’70s, the feeling was, is [sic] that liberals were guilty of that kind of approach,” he said. “What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.” That error? “Not showing appropriate deference to the decision of lawmakers,” the AP reports.

Really. And which “activist” decisions from the ’60s and ’70s does this former constitutional law instructor have in mind? Griswold v. Connecticut (1965), where the Court found unconstitutional a state statute criminalizing the sale and use of contraceptives? Loving v. Virginia (1967), the same, concerning inter-racial marriage?

The list of Court decisions overturning “the will of the people,” as reflected by their legislatures, is long; and not all are correct. But viewing those decisions through the lens of “activism” and “restraint” is one of the least useful ways of determining that question. In fact, too often those labels distract us from the real issue, namely, disagreement over the meaning or implications of the constitutional, statutory, or regulatory provisions before the Court.

Obama’s objective, however, is hardly disguised. He fears that a “conservative” Court will be “active” in finding constitutional constraints on his agenda. We saw that in his reaction to the Court’s decision in January throwing out parts of the McCain-Feingold campaign finance law. And with more than 20 states now challenging ObamaCare, he’d like to have a Court “showing appropriate deference” to Congress.

On Monday the White House Office of Public Engagement invited me and three others over for an “off-the-record” discussion on the upcoming nomination. After making clear that my comments, at least, would not be off the record, I noted the obvious, that the president’s nominee would likely be in a tough spot during the Senate confirmation hearings, because one of the central questions he or she will have to address is whether, in light of ObamaCare, there are any longer any limits on the power of Congress to regulate. After all, if Congress can now order individuals to buy a product from a private company, what can’t it order?

In his comments last evening, Obama said judges should be deferential “as long as core constitutional values are observed.” Is there any constitutional value more fundamental than limited government, designed to secure individual liberty? The Constitution authorizes courts to actively secure that value, failing which their deference amounts to dereliction of duty.