NATCHITOCHES, La., March 31, 2011 - Senator Barack Obama said in 2007, “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.”
In 2011, President Barack Obama did just that.
In fairness, every politician and pundit who’s ever criticized a President would have to eat some of his words if he were to become President himself. What’s notable about Obama is the volume of words he’s decided to eat in a very short time and for no good reason.
Obama as Bush, only less so.
Senator Obama, a former professor of Constitutional law at Chicago, according to his bio, had it right. The Constitution makes the President Commander in Chief, that is, the official with ultimate responsibility for the operations of the U.S. armed forces. This is one of the few responsibilities specifically assigned to the President by Article II of the Constitution. But as in the case of his treaty and appointment powers, it makes no provision for him to act unilaterally as he sees fit.
It’s understood that the President sometimes has to act to command the military more quickly than Congress can act to authorize it. Likewise, the Constitution draws distinctions between declaring war, “engaging” in war (Article I, Section 10, Clause 3), and “levying” war (Article III, Section 3, Clause 1). The Founders were well aware of the British practice of undeclared war, and they did not ban the President from authorizing military action without a declaration of war.
A declaration of war has the primary effect of changing legal relationships between warring nations. It changes treaty obligations, and under the Alien Enemy Act it permits the President to detain and deport citizens of enemy states. If the United States and Lower Slobovia wish to maintain a legal fiction of peacetime relationships while sending their soldiers to shed each others’ blood, they don’t declare war. The war declaration forces them out of the fiction.
Even so, we retain the notion that Congress must at least be consulted about hostilities, a notion embodied in the War Powers Resolution of 1973. Presidents might hate the constraints of the Resolution, but so far they’ve all consented to consult with Congress and even to obtain congressional authorization for major operations, as Bush did with Iraq.
Obama chose not to. The Republican leadership of Congress says it was not consulted, and there’s little reason not to believe them. Congress has not even debated, let alone authorized, military actions in Libya. This war is unusual for the complete lack of congressional involvement.
That’s strange and unnecessary. Obama wasn’t dealing with an attack on American soil or on American assets. He had weeks to ponder his move, to stay up nights cogitating on the costs and benefits of war and to invite the House and Senate leadership over for pizza and brainstorming. Yet he seemed completely unrushed until the U.N. agreed he could act, and then suddenly a humanitarian disaster loomed in Benghazi and he had to act right now.
This is entirely President Obama’s war. By declining to seek the advice or consent of Congress, he’s made it his own and has wandered into swampy legal territory. The courts have never intervened to stop military operations in progress, and they won’t insert themselves into a discussion they’ve sometimes ruled nonjusticiable. By ignoring the wise counsel of Senator Obama, though, President Obama has created a bone of contention with Congress and has handed his opponents a truncheon with which to whack him on the knees.
Senator Obama observed at an anti-war rally in 2002, “Now, let me be clear – I suffer no illusions about Saddam Hussein. He is a brutal man. A ruthless man. A man who butchers his own people to secure his own power. He has repeatedly defied U.N. resolutions, thwarted U.N. inspection teams, developed chemical and biological weapons, and coveted nuclear capacity. He’s a bad guy. The world, and the Iraqi people, would be better off without him.” He went on to say, “But I also know that Saddam poses no imminent and direct threat to the United States, or to his neighbors, that the Iraqi economy is in shambles, that the Iraqi military is a fraction of its former strength, and that in concert with the international community he can be contained until, in the way of all petty dictators, he falls away into the dustbin of history.”
President Obama now believes that a brutal and ruthless man who butchers his own people creates a humanitarian crisis that calls for a humanitarian war. So be it. If war is “diplomacy by other means,” though, he’s taken personal “diplomacy” to places he’ll probably wish he hadn’t.
James Picht teaches economics at the Louisiana Scholars’ College in Natchitoches, La., where he went to take a break from working in Moscow and Washington. But he fell in love and there he stayed. Now he teaches, takes pictures, and with wife Lisa raises two children. Were he President, he’d rather pass credit for war casualties to Congress; he can’t imagine why Presidents want it for themselves. He tweets and has a blog at pichtblog.blogspot.com.
Read more of Jim’s columns in Stimulus That! in The Washington Times Communities.
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