The following is an excerpt from OpinionJournal.com’s “Best of the Web” written by the editor, James Taranto.
Congress Strikes Back
President Obama’s Libya policy is raising hackles on Capitol Hill, Politico reports:
The criticism is from all directions: from moderates, like Sens. Jim Webb (D-Va.) and Dick Lugar (R-Ind.); from those on the far left and right, like Reps. Dennis Kucinich (D-Ohio) and Ron Paul (R-Texas), who believe the president acted outside the Constitution; and from the establishment on both sides, including House Democratic Caucus Chairman John Larson of Connecticut and Republican Rep. Candice Miller of Michigan, a self-described “hawk.”
As we noted yesterday, this column generally supports the Libya effort. Yet it also seems to us there is merit in the objection that the administration has given short shrift to Congress’s authority and responsibility under the Constitution.
At one time, Barack Obama would have agreed. This passage from a 2007 Boston Globe interview with the junior senator from Illinois has been making the rounds:
[Question] In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? . . .
[Answer] The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.
Is there any way the president’s actions vis-à-vis Libya can be squared with his words in 2007? Perhaps he could argue that he isn’t acting “unilaterally” because the attack has international support, but that seems too clever by half. The interview question clearly concerned the domestic separation of powers. And while the question dealt with Iran, in answering it then-Sen. Obama made a general statement of principle, which would apply here too.
The administration has not ignored Congress altogether. The Hill reported yesterday that Obama sent a letter to Speaker John Boehner “outlining the mission and declaring his authority”:
At the close of the letter outlining actions the U.S. military has undertaken in recent days, Obama said that he “directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”
“I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution,” Obama wrote. “I appreciate the support of the Congress in this action.”
MSNBC.com adds that the administration has begun “to pushback [sic] hard . . . on the charge that the White House did not consult with Congress.” Officials cite “a Senate resolution that passed March 1, which denounced Khaddafy’s atrocities. . . . The resolution was incorporated unanimously and calls for a ‘no-fly zone.’ “
But it’s a nonbinding resolution, and the language about the no-fly zone is equivocal. It “urges the United Nations Security Council to take such further action as may be necessary to protect civilians in Libya from attack, including the possible imposition of a no-fly zone over Libyan territory.”
This columnist is not a purist about such matters. It doesn’t bother us, for example, that there was no formal declaration of war in Afghanistan or Iraq; an authorization to use military force is, to our mind, a de facto declaration of war. But a nonbinding resolution passed by only one house of Congress is nothing of the sort.
Politico quotes Sen. Webb as saying that Congress has “been sort of on autopilot for almost 10 years now, in terms of presidential authority, in conducting these types of military operations absent the meaningful participation of the Congress.” Yet in both Afghanistan and Iraq, President Bush successfully sought congressional authorization before dropping the first bomb.
In the case of Iraq, one could even argue that this was unnecessary–that Congress had already granted the president the authority to act, in the form of the 1991 Authorization to Use Military Force and the 1998 Iraq Liberation Act, which made “regime change” official U.S. policy.
That would have been a foolish position for George W. Bush to take. In committing the country to war, it was politically necessary to build political support, in both the public and Congress. But we raise the 1991 and 1998 laws to point out that Bush would have been on stronger legal ground in claiming the authority to act without further congressional approval than Obama is in resting such authority on a nonbinding Senate resolution.
We are not without sympathy for President Obama’s position, and it’s even a little unsporting to bring up that 2007 interview. Every president finds out sooner or later that the job is a lot harder than criticizing his predecessor from outside was. Presidents have to make tough choices, as Obama did, if belatedly, in Libya. Now, though, he has to make the effort of persuading Congress to ratify his decision to go to war. Otherwise, if things go badly, he’ll be on his own.
For more “Best of the Web” click here and look for thef “Best of the Web Today” link in the middle column below “Today’s Columnists.”
