POTUS Barack Obama Is The "Antiwar Senator, War-Powers President". And I *SIGH* In Frustration.
Antiwar Senator, War-Powers President
Like all of his predecessors, this president has realized why the Constitution vested certain powers in the executive branch: Only it can act with dispatch.
By JOHN YOO
President Barack Obama has again flip-flopped on national security—and we can all be grateful. Having kept Guantanamo Bay open, resumed military commission trials for terrorists, and expanded the use of drones, the president has now ordered the U.S. military into action without Congress's blessing.
Imagine the uproar if President Bush had unilaterally launched air attacks against Libya's Moammar Gadhafi. But since it's Mr. Obama's finger on the trigger, Democratic leaders in Congress have kept quiet—demonstrating that their opposition to presidential power during the Bush years was political, not principled.
Mr. Obama's exercise of war powers in Libya is firmly in the tradition of American foreign policy. Throughout our history, neither presidents nor Congress have acted under the belief that the Constitution requires a declaration of war before the U.S. can conduct military hostilities abroad. We have used force abroad more than 100 times but declared war in only five cases: the War of 1812, the Mexican-American and Spanish-American Wars, and World Wars I and II.
Without any approval from Congress, presidents have sent forces to battle Indians, Barbary Pirates and Russian revolutionaries, to fight North Korean and Chinese Communists in Korea, to engineer regime changes in South and Central America, and to prevent human rights disasters in the Balkans. Other conflicts, such as the 1991 Persian Gulf War and the 2003 Iraq War, received legislative "authorization" but not declarations of war.
Since Vietnam, however, antiwar Democrats have sought to replace the Constitution's reliance on swift presidential action in war with a radically different system appropriate for peacetime: Congress makes policy, the president implements it. In 1973, they passed the War Powers Resolution to require congressional permission for any military intervention abroad, but no president has accepted the law's constitutionality.
President George W. Bush's campaign against terror upped the stakes in this contest. Opening the detention center at Guantanamo Bay, establishing special military courts for terrorist trials, ordering tough interrogation of al Qaeda leaders, and conducting warrantless wiretaps of electronic communications—all without congressional approval—fed the left-wing narrative of an "imperial presidency." Senate Majority Leader Harry Reid and other prominent Democrats regularly attacked Mr. Bush for acting "above the law" and "cutting out Congress." Then-Sen. Joe Biden even opposed the Supreme Court nomination of Samuel Alito because he would not agree that Mr. Bush would need congressional permission to attack Iran.
Mr. Obama once agreed with his Democratic colleagues, saying in 2007 that "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." Fast forward four years: Last Monday, Mr. Obama notified Congress that he ordered military action in Libya "pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive."
For once, Mr. Obama has the Constitution about right. As Alexander Hamilton wrote in Federalist 74, "The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority." Presidents should conduct war, he wrote, because they could act with "decision, activity, secrecy, and dispatch." In perhaps his most famous words, Hamilton wrote that "Energy in the executive is a leading character in the definition of good government. . . . It is essential to the protection of the community against foreign attacks."
The truth is that Mr. Bush's case for constitutional authority far outstrips Mr. Obama's. In 2001 and 2002, Mr. Bush won legislative approval for both the Afghanistan and Iraq wars even though he didn't need it.
A few usual suspects have piped up against Mr. Obama's switch. Rep. Dennis Kucinich is talking impeachment again, and fellow isolationist Rep. Ron Paul has suggested that Mr. Obama is acting "outside the Constitution." A few moderates, such as Sens. Richard Lugar and Jim Webb, have called for a congressional debate over a declaration of war—an idea supported by conservative pundit George Will. But don't expect Sen. Reid or former Speaker Nancy Pelosi to introduce legislation blocking the war in Libya. Don't wait for Mr. Biden to thunder forth about saving the Constitution from the president. They are just as silent now as they were when President Bill Clinton bombed Serbia in 1999 without congressional approval.
Real opposition comes from a different quarter: young congressional Republicans like Jason Chaffetz of Utah or Justin Amash of Michigan. Their praiseworthy opposition to the growth of federal powers at home misleads them to resist Washington's indispensable role abroad. They mistakenly read the 18th-century constitutional text through a modern lens—for example, understanding "declare war" to mean "start war." When the Constitution was written, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities. In the century before the Constitution, for example, Great Britain fought numerous major conflicts but declared war only once beforehand.
Matthew Kaminski of the editorial board explains America's role in the Libyan campaign.
Our Constitution sets out specific procedures for passing laws, appointing officers, and making treaties. There are none for waging war. The Constitution declares that states shall not "engage" in war "without the consent of Congress" unless "actually invaded, or in such imminent Danger as will not admit of delay"—exactly the limits desired by antiwar critics, complete with an exception for self-defense. But even these limits are absent when it comes to war waged by the president. The Framers wanted Congress and the president to struggle over war through the political process, not the courts.
Congress is too fractured, slow and inflexible to manage war. Its loose, decentralized structure would paralyze American policy while foreign threats loom. The Framers understood that Congress's real power would lie in the purse. During the 1788 Virginia ratifying convention, Patrick Henry attacked the Constitution for failing to limit presidential militarism. James Madison replied: "The sword is in the hands of the British king; the purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist."
If Congress opposes action, it can reduce funding for the military, eliminate units, or freeze supplies. Congress ended U.S. involvement in Vietnam by cutting off funds for the war. Our Constitution has succeeded because it favors swift presidential action in war, later checked by Congress's funding power.
Unfortunately, Mr. Obama's desire to work through the United Nations has only substituted one source of delay and unaccountability for another. While he wasted weeks negotiating with the Arab League, NATO allies and finally the U.N. Security Council to win the international approval he so desperately seeks, Moammar Gadhafi reversed his battlefield losses and drove the rebels into one last holdout in Benghazi. The Constitution centralized the management of war in the president precisely to avoid the delays and mistakes of decision-making by committee. While Mr. Obama has done well to part ways with antiwar Democrats, he has shown that he still has to learn the ways of the executive.
Mr. Yoo, a law professor at the University of California, Berkeley and visiting scholar at the American Enterprise Institute, was a Justice Department official from 2001-03.
Editor's comment: I wonder if the Nobel Peace Prize Committee can ask for its prize back from the POTUS, because it was IMPROVIDENTLY and PREMATURELY awarded to him.
Like all of his predecessors, this president has realized why the Constitution vested certain powers in the executive branch: Only it can act with dispatch.
By JOHN YOO
President Barack Obama has again flip-flopped on national security—and we can all be grateful. Having kept Guantanamo Bay open, resumed military commission trials for terrorists, and expanded the use of drones, the president has now ordered the U.S. military into action without Congress's blessing.
Imagine the uproar if President Bush had unilaterally launched air attacks against Libya's Moammar Gadhafi. But since it's Mr. Obama's finger on the trigger, Democratic leaders in Congress have kept quiet—demonstrating that their opposition to presidential power during the Bush years was political, not principled.
Mr. Obama's exercise of war powers in Libya is firmly in the tradition of American foreign policy. Throughout our history, neither presidents nor Congress have acted under the belief that the Constitution requires a declaration of war before the U.S. can conduct military hostilities abroad. We have used force abroad more than 100 times but declared war in only five cases: the War of 1812, the Mexican-American and Spanish-American Wars, and World Wars I and II.
Without any approval from Congress, presidents have sent forces to battle Indians, Barbary Pirates and Russian revolutionaries, to fight North Korean and Chinese Communists in Korea, to engineer regime changes in South and Central America, and to prevent human rights disasters in the Balkans. Other conflicts, such as the 1991 Persian Gulf War and the 2003 Iraq War, received legislative "authorization" but not declarations of war.
Since Vietnam, however, antiwar Democrats have sought to replace the Constitution's reliance on swift presidential action in war with a radically different system appropriate for peacetime: Congress makes policy, the president implements it. In 1973, they passed the War Powers Resolution to require congressional permission for any military intervention abroad, but no president has accepted the law's constitutionality.
President George W. Bush's campaign against terror upped the stakes in this contest. Opening the detention center at Guantanamo Bay, establishing special military courts for terrorist trials, ordering tough interrogation of al Qaeda leaders, and conducting warrantless wiretaps of electronic communications—all without congressional approval—fed the left-wing narrative of an "imperial presidency." Senate Majority Leader Harry Reid and other prominent Democrats regularly attacked Mr. Bush for acting "above the law" and "cutting out Congress." Then-Sen. Joe Biden even opposed the Supreme Court nomination of Samuel Alito because he would not agree that Mr. Bush would need congressional permission to attack Iran.
Mr. Obama once agreed with his Democratic colleagues, saying in 2007 that "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." Fast forward four years: Last Monday, Mr. Obama notified Congress that he ordered military action in Libya "pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive."
For once, Mr. Obama has the Constitution about right. As Alexander Hamilton wrote in Federalist 74, "The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority." Presidents should conduct war, he wrote, because they could act with "decision, activity, secrecy, and dispatch." In perhaps his most famous words, Hamilton wrote that "Energy in the executive is a leading character in the definition of good government. . . . It is essential to the protection of the community against foreign attacks."
The truth is that Mr. Bush's case for constitutional authority far outstrips Mr. Obama's. In 2001 and 2002, Mr. Bush won legislative approval for both the Afghanistan and Iraq wars even though he didn't need it.
A few usual suspects have piped up against Mr. Obama's switch. Rep. Dennis Kucinich is talking impeachment again, and fellow isolationist Rep. Ron Paul has suggested that Mr. Obama is acting "outside the Constitution." A few moderates, such as Sens. Richard Lugar and Jim Webb, have called for a congressional debate over a declaration of war—an idea supported by conservative pundit George Will. But don't expect Sen. Reid or former Speaker Nancy Pelosi to introduce legislation blocking the war in Libya. Don't wait for Mr. Biden to thunder forth about saving the Constitution from the president. They are just as silent now as they were when President Bill Clinton bombed Serbia in 1999 without congressional approval.
Real opposition comes from a different quarter: young congressional Republicans like Jason Chaffetz of Utah or Justin Amash of Michigan. Their praiseworthy opposition to the growth of federal powers at home misleads them to resist Washington's indispensable role abroad. They mistakenly read the 18th-century constitutional text through a modern lens—for example, understanding "declare war" to mean "start war." When the Constitution was written, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities. In the century before the Constitution, for example, Great Britain fought numerous major conflicts but declared war only once beforehand.
Matthew Kaminski of the editorial board explains America's role in the Libyan campaign.
Our Constitution sets out specific procedures for passing laws, appointing officers, and making treaties. There are none for waging war. The Constitution declares that states shall not "engage" in war "without the consent of Congress" unless "actually invaded, or in such imminent Danger as will not admit of delay"—exactly the limits desired by antiwar critics, complete with an exception for self-defense. But even these limits are absent when it comes to war waged by the president. The Framers wanted Congress and the president to struggle over war through the political process, not the courts.
Congress is too fractured, slow and inflexible to manage war. Its loose, decentralized structure would paralyze American policy while foreign threats loom. The Framers understood that Congress's real power would lie in the purse. During the 1788 Virginia ratifying convention, Patrick Henry attacked the Constitution for failing to limit presidential militarism. James Madison replied: "The sword is in the hands of the British king; the purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist."
If Congress opposes action, it can reduce funding for the military, eliminate units, or freeze supplies. Congress ended U.S. involvement in Vietnam by cutting off funds for the war. Our Constitution has succeeded because it favors swift presidential action in war, later checked by Congress's funding power.
Unfortunately, Mr. Obama's desire to work through the United Nations has only substituted one source of delay and unaccountability for another. While he wasted weeks negotiating with the Arab League, NATO allies and finally the U.N. Security Council to win the international approval he so desperately seeks, Moammar Gadhafi reversed his battlefield losses and drove the rebels into one last holdout in Benghazi. The Constitution centralized the management of war in the president precisely to avoid the delays and mistakes of decision-making by committee. While Mr. Obama has done well to part ways with antiwar Democrats, he has shown that he still has to learn the ways of the executive.
Mr. Yoo, a law professor at the University of California, Berkeley and visiting scholar at the American Enterprise Institute, was a Justice Department official from 2001-03.
Editor's comment: I wonder if the Nobel Peace Prize Committee can ask for its prize back from the POTUS, because it was IMPROVIDENTLY and PREMATURELY awarded to him.
Labels: Civil War, POTUS Barack Obama
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