Last week, the Obama Justice Department’s Office of Legal Counsel released its formal opinion [.pdf] on the President’s “Authority to Use Force in Libya.” OLC is the professional corps providing advice to the president on the legality of his actions, and it’s a much-coveted berth for ambitious lawyers. But, reading the memo over (it’s officially dated April Fool’s Day—make of that what you will), it occurred to me that, personally, I’d sleep better at night as in-house counsel for Fannie Mae or Archer Daniels Midland.
Though the Office is supposed to help the president “take Care that the laws be faithfully executed,” OLC lawyers typically end up telling their immediate employer, “why, yes: the action you’ve already decided to take turns out to be perfectly constitutional.” The Libya memo perfectly illustrates that dynamic.
Per OLC, the constitutionality of our Libyan adventure “turns on two legal questions”:
1. Do the bombing raids and airstrikes the president ordered “serve sufficiently important national interests” to make them permissible exercises of his constitutional powers as “Commander in Chief and Chief Executive”?
2. are “the military operations that the President anticipated ordering” limited enough in “nature, scope, and duration,” such that they do not “constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause?”
In a post over at the Washington Examiner’s blog, I address the second argument, pointing out that, by the Secretary of Defense’s own admission, what we’re doing in Libya is “war,” even if the Obama team prefers Orwellian euphemisms like “kinetic military action.”
As for the first question, whether airstrikes on Libya serve “sufficiently important national interests,” is quite beside the point. The Constitution either gives the president the power to start nondefensive wars or it doesn’t. (It doesn’t). Whether any particular use of the asserted power is “in the national interest” isn’t a legal question, and executive branch lawyers in the president’s thrall are about the last people anyone actually interested in the national interest would consult for the answer.