House Votes Against Authorization of Troops For Libya, But Refuses to Limit Funding
Today's House votes on the Libya resolution turned out exactly as they should. President Obama is relying on his Commander-in-Chief and Chief Executive authority to use force in Libya. Despite what he said as an antiwar candidate, Obama doesn't need Congress's authorization as a constitutional matter. He only needed Congress's funding, and that he got when the House rejected a cut off of the Libyan operation. But it makes sense as a matter of good politics for the Obama administration to seek congressional cooperation, as George W. Bush did in both Afghanistan and Iraq, and the sad fact is that the President's men and women went to almost no effort to seek it.
The votes also show that the House is playing its proper role. It is not creating a constitutional crisis by removing funding for the war. But it is expressing its strong disagreement with the policy of the war. I happen to think the original intervention into Libya was a good idea -- getting rid of an anti-American dictator in a region of strategic importance to the United States and stopping the slaughter of civilians during a period of popular revolution in the Middle East. But I believe that the Obama administration, enamored as it is of the United Nations and desirous to "lead from behind," has mucked the war up by handcuffing the military's ability to go after the Gaddafi regime and failing to support the rebels. It would have been disastrous for the House to pull us out now that our credibility is on the line, but it can do better than just reaffirm the status quo by trying to pressure the administration into bringing the war to a fast conclusion.
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Re: House Votes Against Authorization of Troops For Libya, But Refuses to Limit Funding
Didn't we used to make fun of Democrats for this?
Isn't this akin to John Kerry's "I voted for it before I voted against it?"
Aug '10
Re: House Votes Against Authorization of Troops For Libya, But Refuses to Limit Funding
In the spirit of candor, it is probably worth footnoting this statement with the caveat that Professor Yoo is known for an expansive view of executive power and many (perhaps most) other con law experts would disagree in how they read the Article I, section 8 versus Article II, section 2. I'm not saying that Professor Yoo is wrong, just that it is a matter of controversy and many experts would say that the War Powers Resolution is constitutional.
Indeed. This is particularly insulting relative to President Obama's great interest in the approval of the Arab League and the UN, neither of which is the subject of Article I, Section 8.
Apr '11
Re: House Votes Against Authorization of Troops For Libya, But Refuses to Limit Funding
I'm not sure I can get comfortable with "Obama doesn't need Congress's authorization as a constitutional matter." Congress must have a role in the war powers beyond mere purse string issues. The idea that the President has exclusive authority to commit the U.S. to a long-term engagement touches not merely on the question of expense but of national policy. A declaration of war has more significance than a statement of Congress' willingness to pay.
It is one thing that the CinC must have the ability to act quickly, decisively, and unilaterally under circumstances where prior approval is unrealistic (e.g., defense, responding imminent threat, hot pursuit, retaliation), but when time is not of the essence I can see no reason why Congress should not be asked to provide authorization.
Libya is the kind of operation that Congress can and should have been asked to provide authorization. There was a long run up to this operation and the Administration originally took the position that it would not get involved - only to get involved at the last minute and then use that last-minute urgency to engage in all this "kinetic operation"/"it's not hostilities" nonsense.
Aug '10
Re: House Votes Against Authorization of Troops For Libya, But Refuses to Limit Funding
While you have written very convincingly about the Unitary Executive in the past, in fact you have shaped much of my understanding of the office, I think you are extending too much of the Prerogative power to the roles of "Commander in Chief" and "Chief Executive." Congress does have some powers when it comes to War that would normally be under the purview of the Executive Prerogative powers. Ours is a system of "Shared Powers" after all -- our veto is an executive and not legislative one for example.
Congress has the power to "define and punish Piracies and Felonies commited on the high Seas, and Offenses against the Law of Nations." Seems to me that Libya once fell under one of these, and now falls under the other.
"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." The President may control the troops, but what they do with PoWs and spoils of war is the purview of Congress. The "hand off" to NATO is analogous to a "Letter of Reprisal" as we are allowing them to act on our behalf -- this is a legislative power.
End Part 1
Aug '10
Re: House Votes Against Authorization of Troops For Libya, But Refuses to Limit Funding
Part 2
This doesn't mean that Obama doesn't have the authority to use the troops as he sees fit, but it does require the acquiescence of Congress. They have not declared war, nor authorized any hostilities save through funding. Any authorization, such as the Iraq authorization, is sufficient, the word War need not be used, but unilateral use of forces without approval is a violation of shared powers.
There are two ways that the War Powers Act is Unconstitutional. First, it seeks to limit the power of the executive and tie the executive more strongly to the Congress. Second, it essentially provides a "fill in the blanks" declaration of war that every president would benefit from for 60 days.
Congress also has authority "To Make Rules for the Government and Regulation of the land and naval Forces." The Executive may manage the land forces and the navy, but they must follow the rules of Government and Regulation passed by Congress -- and signed by the President.
Their duties are shared, not equal as the Executive must act with energy and dispatch, but they are shared.
I too think that we should be in Libya and in the lead.
Mar '11
Re: House Votes Against Authorization of Troops For Libya, But Refuses to Limit Funding
Hi John,
I am extremely happy that you are on Ricochet--it shows the special quality of this site.
I am a robust defender of executive prerogative. Nonetheless, you and I have a disagreement about the War Powers Act. Nevertheless, I agree with you here that Congress has decided to do the right thing and not strip funding, but expressed disagreement.
I would challenge your assertion that Pres. Bush went to almost no length to secure the use of force from Congress. You seem to think that even a cursory visit is wildly inappropriate and totally beneath the Executive office. I, frankly, don't mind seeing the President make a case to the public for war via the Congress. In fact, one could say that such an event provides precisely the kind of check on Executive prerogative that John Locke had in mind in his chapter on the subject--and this from first principles, not common law.
My challenge to you is this: Congress is not likely to undermine a war effort in progress given today's politics. What are the limits on the Executive power to make war, other than election, in your mind?
May '10
Re: House Votes Against Authorization of Troops For Libya, But Refuses to Limit Funding
I strongly disagree with John Yoo about what the president is able to do legally. But let's say he's right. If the president can indeed order American troops to bomb or invade any country on earth merely by giving the order – if the Constitution gave only a semantic power to Congress when it permitted the body to declare war – then we ought to amend the Constitution immediately so that the executive is more restrained.
Jun '11
Re: House Votes Against Authorization of Troops For Libya, But Refuses to Limit Funding
My first ricochet post ever. I've always been conflicted on this issue, since our founders had such distrust in a large standing army, favoring a strong militia system. In that model, it took Congress to declare war and then fund the buildup of an army to fight the war. It makes it very difficult to judge what their "intent" was related the President's ability to utilize a standing army that they never imagined existing. It certainly seems reasonable to me that the President should be able to unilaterally utilize the military to respond to a direct attack or thwart an imminent attack. However, it seems reasonable, too, that a prolonged engagement or an engagement where we join with the military of other nation(s) should require consultation and approval with Congress, rather than only giving them the politically treacherous option of pulling funding to end a war they disagree with, which would certainly undermine the morale of the forces.
May '10
Re: House Votes Against Authorization of Troops For Libya, But Refuses to Limit Funding
You must be joking. I don't vote for politicians to voice opinions. I vote for them to act.
Regardless of whether or not the House should have pulled funding for the war, let's not pretend verbal condemnation accomplishes anything.
If the War Powers Act is not supported by the Constitution, then it should be taken off the books. No one has the authority to disregard our laws.
Aug '10
Re: House Votes Against Authorization of Troops For Libya, But Refuses to Limit Funding
The Founders very much meant for the powers of warmaking -- which are part of the Prerogative powers of the Executive -- to be limited through the use of the declaration of war and other provisions.
One need only look at the Tripolitan affair during Jefferson's presidency -- a Libya again, why is it Libya that truly tests the powers of the Executive? -- to see that play out.
One could also use Washington as a guide. He used the power of the Presidency to make a Proclamation of Neutrality and not one of War. He felt it was in the purview of the Executive to declare neutrality, but not enact war.
Madison believed that this was an overreaching of Foreign Affairs powers, as did Jefferson -- but his own later actions show his belief to be more partisan than ideological.