Tag: presidency

More on Libya and Constitutional War Powers

So it turns out that, per CBO’s numbers, the “epic” budget showdown didn’t even produce enough cuts to pay for a week of bombing Libya.

On that subject, as I noted last week, the Obama administration’s Office of Legal Counsel recently released its memo arguing that our Libyan adventure is constitutional. And that memo is one sorry piece of work.

Over at the Washington Examiner’s “Beltway Confidential” blog, I’ve been commenting on various aspects of the OLC memo, and I thought I’d link to some of that discussion here.

Recently, I addressed two of the OLC’s arguments: (1) that what we’re doing in Libya isn’t “war”; and (2) that the 1973 War Powers Resolution gives the president a 60-to-90-day “free pass” to wage war without congressional authorization. Neither argument comes close to showing that the president’s actions in Libya are legal.

Make no mistake, what we’re doing in Libya amounts to war. Defense Secretary Gates admitted as much recently, albeit reluctantly:

It’s fairly common to hear supporters of unrestrained presidential war power argue that whatever “war” is, it’s far too ambiguous a concept for us to insist that the president be restrained by constitutional niceties like prior congressional approval.

But this is a silly argument.

Yes, there are line-drawing problems with the “Declare War” Clause, as there are with every other clause in the Constitution. That doesn’t mean there are no lines — the color gray isn’t a refutation of the categories “black” and “white.”

And the Libyan intervention is pretty black and white. This is a nondefensive, unprovoked use of force, ordered by our president to, as he put it, prevent a massacre that would have “stained the conscience of the world.” (By the way, there’s good reason to doubt that was the case, Professor Alan Kuperman argues.)

The OLC’s argument that the War Powers Resolution empowers the president to launch “limited” wars fares no better. Put briefly, (1) the WPR makes clear that the president’s constitutional powers are limited to defensive uses of force; (2) the text underscores that the WPR doesn’t purport to add anything to the constitutional powers of the president; and (3) it couldn’t in any event: the Constitution trumps a statute, and, like it or not, the Constitution doesn’t allow the president to start wars.

Even so, the WPR — passed over Richard Nixon’s veto in 1973 to restore congressional control over the decision to go to war — hasn’t much inconvenienced any president since. Perversely, they actually use it as an argument for presidential war-making, which is why it may have done more harm than good, overall [.pdf].

As Charlie Savage pointed out recently in the New York Times, the 60-day clock runs out in mid-May. We’re still bombing Libya now, and President Obama recently approved the use of armed Predator drones there. If this keeps up for another month, then Obama will become the second Democratic president in a row to wage war beyond the WPR’s 60-day limit.

The Non-Defense of DOMA

The Obama Administration’s decision to stop defending DOMA in the courts has provoked some widespread commentary. Jim Burroway hints that Obama’s strategy here is both deep and cynical. Obama’s locked in a losing fight with Republicans over the budget, because Americans really do want to cut federal spending. This remains true even if, notoriously, nearly the only specific program they want to cut is our negligible foreign aid.

The mood is anti-spending, and it’s just possible that a government shutdown scares Obama even more than it scares the Republicans. The remedy? Change the subject. Make Republicans in Congress defend their stance on gay marriage, which is so not the discussion they’d like to be having.

It could be one of the first instances in which gay marriage counts as a wedge issue against Republicans, rather than for them. Opposing same-sex marriage appeals strongly to a smallish base. To the center, the whole subject is distasteful either way, and they don’t mind if Obama drops it. Finally, more and more people just find the conservatives embarrassing here. Obama sees no need to do their dirty work for them, especially when the work really is that dirty.

Meanwhile, Orin Kerr is worried about executive power:

By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.

Liberals: If you think declining to defend DOMA is the right decision, how will you feel when a Republican administration declines to defend in a school prayer case? Or an abortion case? Or on Obamacare itself?

There are two very, very distinct issues here. One concerns gays and lesbians. The other concerns the proper relationship among the three branches of the federal government. One is about policy; the other is about procedure. Deciding a procedural question based on what it means for a one-time policy outcome is just bad governance. The questions we should be asking are – How much power would this really give the president? Is this a particularly new power? (Arguably it’s not.) And in any case, are we comfortable with the president having it, even if he or she has radically different views about policy?

When we look at it that way, there’s a near-perfect parallel to the perennial debate over the filibuster. Everyone hates it when they’re in the majority. Everyone loves it when they’re in the minority. Politics really is the mind-killer.

Ranking the Academics

At Politico Arena today, the question is:

Who was the best president, and who was the worst? (For more on this question, see the post by David Boaz, just below.)

My response:

The new Siena College poll ranking U.S. presidents speaks to nothing so much as the corruption of the modern American academy. I defer to the comments of my colleague, David Boaz, and would add only that these rankings are about as insightful as many of the scribblings of these academics.