Monday, March 28, 2011

The Unconstitutionality of Obama's Kinetic Action in Libya

A co-worker and friend of mine wrote the following article, and I thought it more than worthy to post here.  His name is Randy Jones and while he does not have his own blog, he is very well read and has extensive current event and historical knowledge.  Further, while he is a lawyer and there are rumors to him once having had a Hillary picture hanging in his office (okay, not really!) he is a good guy and quite often nails it with any given subject.  In other words, he often agrees with my perspective!
This evening,  the President is finally getting around to telling us why he thinks we should be fighting in Libya.  However, I think there is a deeper problem here that only Jeffersonian Republicans and Liberal Democrats are talking about.  I should say some Liberal Democrats as the others are siding with the Big Government Republicans on this one.  The deeper problem and most important one is the fact that President Obama did not go to Congress to seek authorization to go to war with Libya.  Article I Section 8 Subsection 11 gives the US Congress the power to Declare War.  The President is only given the power as Commander-in-Chief under Article II. 
Now, does this mean that if the President knew of an imminent threat that he/she could not launch a preemptive strike?  Of course not.  The Constitution is not a suicide pact as one Supreme Court Justice once put it.  Could a President defend the nation while under attack without going to Congress?  Of course, he/she could do that.  That is what FDR did in the Pacific after the attack on Pearl Harbor.  However, that is not the case with Libya.  The case with Libya is a President buckling to Hillary Clinton and the Big Government Republicans and involving us in another war.  It is that plain and simple.  He was not for getting into this war.  That is very obvious, but he buckled under the pressure. 
The President argues that he got permission from the Arab League, NATO, and the United Nations.  That doesn't mean anything without authorization from Congress.  He has to go there and if Congress says no we are not going to war then, that is the end of discussion.  Is Obama the first President to do this?  The answer is a clearly no and Ronald Reagan was probably the last one to egregiously offend the war powers of Congress when he invaded Grenada for no real reason other than just wanting to do it.  It was of no threat to America and no one really believes that students were being threatened enough to warrant an invasion. 
That is the case here with Libya.  However, Obama has taken this to a newer height by saying he got international approval therefore he doesn't need Congressional approval.  That is outrageous and should worry everyone.  You may remember that even though President George H. W. Bush had permission from the UN to drive Iraq out of Kuwait, he still got authorization from Congress.  George W. Bush had permission from the UN to invade both Iraq and Afghanistan, but he still went to Congress for authorization for both wars. 
Liberals forget that Congress signed onto both those wars, but those are the facts.  Congress could have repealed both authorizations to stop those wars, but chose not to do so in which Obama has power to prosecute those wars.  I should state for the record that I supported the war in Iraq and Afghanistan, but I do quarry with how Bush prosecuted both those wars.  That is a subject for another day as things have changed and so should our strategies.  I digress.
Having said that, he has no power from the people of the United States to wage this war in Libya.  It doesn't make our imminent threat scenario or our under attack scenario, so he has no excuse for what he is doing.  International agencies cannot be a bypass of the Congress's war making powers.  If we allow this go on it will be a step towards eventually all of our laws being bypassed by some international institution.  Big government does not come all at once and neither does world government.  It comes in drips and drabs in which now is the time to stop the leaking of our freedom before someday we will have to get permission to even have an army from the United Nations.
Randy S. Jones, Esq.
Jeffersonian Republican


free0352 said...

The deeper problem and most important one is the fact that President Obama did not go to Congress to seek authorization to go to war with Libya. Article I Section 8 Subsection 11 gives the US Congress the power to Declare War. The President is only given the power as Commander-in-Chief under Article II.

The War Powers Resolution of 1973 (50 U.S.C. 1541–1548) says the President can send U.S. armed forces into action abroad. The War Powers Resolution requires the president to notify Congress within 48 hours of committing armed forces to military action (which President Obama did) and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war from Congress. Now correct me if I'm wrong, but it hasn't been 60 day's yet has it?

I don't like this thing in Libya at all, but it is consititutional and consistant with US law. If you don't like the law, get it changed, but law it is.

Randy S, Jones, Esq. said...

The War Powers Act is unconstitutional which is why neither side ever really uses it. For political reasons, they talk about it, but never use it. They know that our Supreme Court has always struck down a law delegating Congressional Power to the President. The line item veto being the last law struck down by the court where Congress delegated its power to the President. In that case, it was delegating budgetting power. War Power is solely with Congress and it can't be delegated no more than budgetary powers. Therefore, the War Powers Act would be found unconstitutional if invoked by a President which is why it is never invoked.

free0352 said...

I've been on lots of missions where the war powers act was the legal justification. Two thirds of congress actually supported the war powers act. Military missions move too fast for congress to react, the President needs that authority as commander in chief in order to do his job of protecting America. Just in this case... it wasn't a good idea... but not illigal. Bottom line, law say's he's got 60 days. If you don't like a law, you can challenge it in court.

John Myste said...

First of all, agree or disagree with the conclusion, this is a really good article and very well said, regardless of your assumption that the War Powers Act cannot be used because we theorize that it would be declared unconstitutional if challenged, which I think is pretty a pretty weak argument.

Frees response was also impressive (so far).

The fact is Obama should have gone to Congress. He was clearly not in a rush. He had time to talk to every world leader, read the results of every poll, discuss it with his minister, his wife, his dog and write a book about it, if he had chosen to do so. Therefore, he had the time to mention it to congress while he was at it. The biggest reason is that not doing say made the democrats a target, and the last thing we need is another republican in the White House, which would probably be much more costly overall than a bad mistake in Libya would be, as I am sure everyone here will agree.

T. Paine said...

Myste, I know you are a proponent of precedence, sir, and Obama does indeed have predecessors guilty of the same charge. That being said, I think you are absolutely right. He didn't want to go to congress strictly for political reasons and I think that Randy's comment also has some merit too.

In the end, Obama's cynicism is deplorable and he had nothing but time to get congressional approval.

The fact that he got a permission slip from every other political body in the world but the one he is constitutionally obligated to get just further shows his lack of fitness for office, IMO.

John Myste said...

Mr. Paine,

I reluctantly have to admit that he should have got formal approval. As you pointed out, there are several precedents of presidents not getting congressional approval for military action. I am not saying that is not fit for office. He is the most fit for office of anyone that has held that office is more than a decade, and possibly much longer.

I can disagree with a decision and still maintain his fitness for office. Anyone who defines fitness for office on one or two issues would have to reject everyone.

This action in no way speaks to his fitness for office at all and any other opinion is extreme.

Did you hear me claiming Bush was not fit for office when he advocated torture and civil rights violations? I did not like them at all and I certainly think almost everyone else is more fit, but I never explicitly declared him as unfit, though I strongly suspect he was.

Randy S. Jones said...

I don't want to insult anyone, but using past bad behavior to justify new bad behavior is not a good argument. Or better said just because great Presidents like Reagan violated the Constitution by invading Grenada is not an excuse for a Carter 2.0 to do it. I did mention Reagan for a reason which was to show that both ends of the political spectrum love to use the military for their ends. That is why the founders put the war powers in the hands of Congress instead of one man.

Over the years, I have become to realize that both parties don't want to reduce the federal government. They just want to use it for their ends. I was watching Fox Sunday News just yesterday and something hit me. I have been watching Bill Kristol, a Big Government Republican, and Juan Williams, a Socialist Democrat argue about government. Is Kristol looking for Jefferson Republicanism? No, he is only arguing with a Socialist over a minor degree of Big Government. Establishment Republicans love government when they are dividing up our tax dollars. They are no different than Democrats and you see this now with Boehner.

I call Obama the Third Term of George W. Bush. Later on, I will publish another article showing there is hardly no difference between the two. I challenge you to go look at their policies and you tell me which one is not big government. I digress.

free0352 said...

Frees response was also impressive

That's because I'm always right. I'm a fucing genious and I know it.

He is the most fit for office of anyone that has held that office is more than a decade, and possibly much longer.

Please explain, because by any logical yardstick he's exactly like George W. Bush. I mean the two are clones of one another.

John Myste said...


Very simple. Not using a yardstick. That only measures three feet and then becomes repetative. I can see how things look similar with that tool.

T. Paine said...

I would have to concur with Randy on this one, yet again. (You guys realize that you are causing me to side with a lawyer, right?!?)

Mama always said, two wrongs don't make a right. And then she said something clever about a box of chocolates.

While Reagan was the best president to serve since I was born in '66, he still made several big mistakes. (Pulling out after the Marine barracks were bombed in Lebanon comes to mind.) That said, a bad precedent, especially one that is contrary to constitutional dictates, is one that absolutely should not be followed.

Myste, by the logic of following precedent, any president can suborn perjury, hide subpoenaed evidence, and tamper with material witnesses and expect not to be convicted on articles of impeachment just because William Jefferson Clinton got away with it. I don’t think this is where we want to go as a nation.

John Myste said...

Mr. Paine,

I was not implying that something is right or wrong based on precedent, but more that if we tolerate it in the past, we cannot suddenly not tolerate it without some logical reason.

If you think the War Powers Act should be overturned, then overturn it. However, you cannot decide that a tool used by presidents in America, and legally sanctioned is unconstitutional. The Constitution has authorized the legislative body to make law that can only be over turned by judicial authority. There has been plenty of time to make this happen. This has not happened, and thus, the law is Constitution.

I know you think this is un-constitutional, but the Constitution disagrees with you. Show me the article or amendment that supports your notion that you can declare laws unconstitutional if the judiciary fails to do so?

Nowhere in the constitution does it say that T. Paine can review and throw out law.

Also, can you please point me to your essay renouncing a republican president for taking action in the U.N. without congressional permission, so I can compare it to this one?

T. Paine said...

John, wouldn't the fact that it is wrong and contrary to the constitution be a logical reason to disregard this precedent, sir?

Further, congress is ironically shooting itself in the foot as they have not challenged the president now or in past incidents regarding the invocation by implication of the War Powers Act.
If they had challenged the president, then the judicial review would have taken place and the matter adjudicated accordingly.

Instead, multiple congresses have had no problem with the executive branch usurping what is clearly a constitutional power and duty of the congress alone in the declaration of war. This is often the case because of political cowardice or expedience I suspect. Neither reason would pass judicial muster.

Just as a murder that has not yet been convicted at trial is still a murderer in every sense except perhaps that of a technically legal aspect, so too is a law that is patently contrary to the very clear dictates of the Constitution still unconstitutional despite the fact that an authorized court has yet to rule it so, sir.

Finally, I have no such essay as you requested to point you towards as I have only been blogging during the current administration. Regardless, I will acknowledge that wrong is wrong regardless of whether a president or congressman has a "D" or a "R" beside his name.

John Myste said...

Mr. Paine,

Obama SHOULD have got congressional approval. My point is that he did not break the law or violate the constitution, which allows for the legislature making laws that may then be challenged and over turned by the judiciary.

There is no question that not getting congressional approval was wrong and foolish. It was not illegal.

T. Paine said...

Mr. Myste, I will concede that from a narrowly legalistic point, Obama did not break the law, even though the law he followed is clearly contrary to the law of the land as delineated in the Constitution.

In other words, like the Pharisee he often seems to be, Obama followed the letter, if not the spirit of the law precisely. ;)

free0352 said...

There is no question that not getting congressional approval was wrong and foolish. It was not illegal.

I would agree with this statement. I also am glad Paine you concede the point on the illegality of Obama's action.

I would say however, that the war powers act is entirely nessessary. It was used to attack Libya the first time, not to mention numberous missions undertaken by Mainres such as-

Fighting piracy, securing embassys
rescuing American citizens abroad in places for example like Siera Leone when Americans were evacuated by the Navy, providing humanitarian assistance in places like East Timor.

I've done all those missions, and I'm just one guy. You cut the executive's ability to defend American intrest off without the war powers act. The 60 day time period allows for plenty of congressional oversight, and meets with the spirit of said oversight outlined by the Constitution.

In this case however, I think it was used foolishly- but I don't think we should throw out a very important and good law because of it.
Reacting quickly to terrorist threats.

The Heathen Republican said...

"The fact is Obama should have gone to Congress. He was clearly not in a rush. He had time to talk to every world leader, read the results of every poll, discuss it with his minister, his wife, his dog and write a book about it, if he had chosen to do so. Therefore, he had the time to mention it to congress while he was at it."

First John, well put. Second, as Obama himself said last night, "And so nine days ago, after consulting the bipartisan leadership of Congress, I authorized military action to stop the killing and enforce U.N. Security Council Resolution 1973."

I will not attempt to argue that this is the same as seeking authorization from congress, but maybe Obama prefers to follow the spirit of the law, not so much the letter.

Randy S. Jones said...

I have been working on my sink tonight to flx a clog in the pipes. I found Washington. I mean crap, but i couldn't tell the difference. Okay, I am being a smart ass, but I couldn't help it.

Now to Obama or any other President violating the Constitution. It doesn't matter that illegal precedent has been set and you have to start righting a wrong whether it is one day old or 38 years old. Actually, you could go back to Jefferson and find a President fighting un-declared wars. Actually, the wars against the Indian Tribes were never declared and therefore illegal. The only argument would be the President was fighting an insurrection. However, that doesn't cut muster because the tribes were considered separate nations under the Constitution. Therefore, the Presidents over the 1800s should have gotten some type of authorization of force to fight the tribes over the years. It wasn't right then and it is not right now when a President tries to hide behind an ilegal law.

The next thing I would like to point out is that Obama will not use the word War. Why? The reason is why is because it would evoke the War Powers Act. He calls it everything, but a war even though we have dropped more bombs than the Japanese did on us at Pearl Harbor. We call that a war, but we call Obama's actions Kenitic Military Action. I am just a dumb red neck who uses common sense with the law, so please help me how one is a war and one is not. Carter 2.0 believes were either stupid to notice the difference or to busy watching Dancing with the Stars. Or in my case fixing the kitchen sink. Nonetheless, his actions are wrong and Congress needs to finally put an end to these undeclared wars.

I agree that picking on poor little Carter 2.0 is probably not fair. However, he wanted the job. He begged for it and got it, so take the beatings and quit whining.

T. Paine said...

Free, I will agree that in concept the War Powers Act is probably a good thing and necessary. Fine! If so, then an amendment needs to be added to the Constitution to address this matter.

We as a nation have violated the law of the land when it suited our purposes, even if those purposes were necessary and noble, for way too long.

Either we are a nation of laws and abide by the Constitution or we are not.

S.W. Anderson said...

I'm a liberal and I think Obama erred by not seeking Congress' permission to participate in this action in Libya. But then, I've said for decades presidents should be obliged to go back to doing that when not faced with an imminent or actual attack. Further work on the War Powers Act and a firm understanding are needed.

That said, I'm reminded of Nixon invading and carrying out carpet bombing raids regularly and repeatedly for an extended period in Laos, with no declaration of war asked for or received. There's a violation on a monumental scale.

Then there was the CIA skulduggery in Nicaragua during the 1980s, which not only didn't have Congress' approval, but was carried out in violation of an act passed by Congress and the clearly expressed intent of Congress.

There was also the 1989 arrest of Manuel Noriega that involved invasion of Panama and regime change. What the U.S. did to get Noriega was an act of war. Did we wage war against Panama? Is war simply one thing in all cases? I'm not sure it is.

For me, the case against Obama would be stronger if the U.S. were sending ground troops into Libya, planning to occupy and forcibly change the regime. As it is, a case can be made it's a police action intended to prevent mass killing.

I don't see the fact Obama got agreement from NATO and the Arab League as making it OK to undertake this action without Congress' OK.

Obama isn't whining about anything. The last presidential whining I recall was George W. Bush doing it about how being president is hard work, and he was working hard, yada, yada.

T. Paine said...

Anderson, there is much you say with which I agree.

I do, however, fail to see how sending ground troops to Libya would change the equation, sir. To me that is only a matter of degree of the offense in not getting congressional approval first.

I certainly don't excuse any of Obama's predecessors for doing likewise either.

S.W. Anderson said...

It goes back to a better, clearer definition of what constitutes war. Words and definitions matter, and where people's lives are subject to being put on the line, they're critically important.

However, any clearer, more up to date definition of "war" and of military actions considered short of war must be set down with a firm understanding those actions are prone to escalation, so none of this will ever be absolutely clear and ironclad.

BTW, if I understand Obama correctly, he felt he had to act quickly, only "consulting" with congressional leaders, because delay would have resulted in the Libyan rebels being massacred. It's a credible answer if not a completely satisfying one.

T. Paine said...

Anderson, I will agree with the first part of your comment, but with the second part... well you're selling make-believe and we don't buy that here, my friend.

Even our good friend and resident liberal John Myste had the integrity to acknowledge that President Obama had enough time to consult everyone within his universe and then write a book about it, so his not going to the full congress is not only a very disatisfying answer but also one that strains the bounds of credibility, sir.

free0352 said...

Then there was the CIA skulduggery in Nicaragua during the 1980s

If the CIA can't run illigal, clandestine wars, why have it?

Also, really... what is the differece between a troop walking arround Libya and flying arround for leagal purposes? It's basically the same thing... besides the nice clean bed the navy pilot gets nightly.

delay would have resulted in the Libyan rebels being massacred. It's a credible answer if not a completely satisfying one.

He had plently of time to chat with France and England so you'd figure he could have penciled in Congress. Obama get's off on a technicality under the war powers act- I've argued that here. That siad, he had plenty of time to do it and didn't for political reasons- and while that isn't illigal that doesn't make it the right thing to do.