GOP Sacrifices Principle by Employing the Unconstitutional War Powers Resolution


I hate it when I agree with the editorial page of the New York Times, even half-way.  The Libyan conflict falls within the terms of the War Powers Resolution, and both Democrats and Republicans are flipping the constitutional positions they held under the last administration. At least this time the NYT editorial writers have the diagnosis right.  But they would administer the wrong medicine.  The treatment isn’t to force everyone to obey an unconstitutional law, the War Powers Resolution, that is both untrue to the Framers’ original understanding and unsuited to the exigencies of modern war.  The New York Times wants to administer the equivalent of using leeches on a patient with the common cold.  The right constitutional answer is to toss the empty symbolism of the Resolution and meaningless lawsuits aside and let them fight it out using their own powers — Commander in Chief versus the purse — in the political process.  And as I conclude in my column appearing in the WSJ today, if Republicans are really serious about ending U.S. military operations in Libya, they can begin the process of impeachment, one of the real tools intended by the Framers to counter executive adventurism.

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  1. Profile Photo Member

    Impeachment proceedings? Really? How about the power of the purse as a more realistic “first cut” at getting us back on some semblance of a Constitutional footing?

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  2. Profile Photo Inactive

    I guess there are several points to be made here. The War Powers Act is the law. In the same way that the administration should defend DOMA, should not the Congress enforce the War Powers Act? The way to get rid of the Act is either to repeal it or for someone to challenge the constitutionality in the courts. Either would be fine with me.

    Until it is not the law,the administration should be held to it. Giving them a pass they would never give anyone else is perhaps being more catholic than the pope. The conduct of the administration, in being more deferential to NATO than the Congress is despicable and I’m willing to use whatever tools are at hand to make them accountable.

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  3. Profile Photo Member

    But Richard, every president since Carter has asserted that the WPA is unconstitutional. As have most Republicans in Congress. Prof. Yoo has this one right. There should be a legal challenge to the law and Republicans should stop playing opportunistic hypocrisy and join the challenge to resolve this once and for all.

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  4. Profile Photo Inactive


    I think your Constitutional argument about the President’s Commander and Chief power versus the Congressional purse power is tellingly silent on that other Constitutional power given to Congress: the power to declare war.

    The War Powers Act is flawed in a number of ways. Nevertheless, it was a piece of legislation that made concessions to the way of modern war while still attempting to maintain checks and balances. That the Executive is far more capable of directing war and making the hair-trigger decisions is self-evident. That this fact equates to carte blanche without Congressional checks is dubious.

    The current argument over Libya policy, unseemly though it may be, is basically a political and not judicial/criminal proceeding, which is way closer to the political debate over Executive/Congressional roles that you endorse in the first part of your article, than the initiation of Impeachment proceedings. You’ve completely lost me there: the absolute last thing I want in wartime (forget the present case and think the future) is a precedent that says that we will politicize a war so far that the President will face a legal challenge before Congress while trying to win a war.

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  5. Profile Photo Inactive

    Begin impeachment proceedings over Libya? Why not simply urge the Republicans in the House to all wear big red noses and baggy, polka-dot pants?

    Mr. Yoo, thy name is Overreach.

    Krauthammer made a similar comment about the GOP changing its stance on intervention since it defended Bush on the surge in 2006-7. Of course, it can be seen as an “unprincipled,” political reversal if you don’t take the following into account:

    1. The passage of four (4) long years
    2. The 2008 financial crisis, which has shaken the foundations of American prosperity
    3. We are now borrowing 40 cents of every dollar we spend in Iraq, Afghanistan and now Libya
    4. The haplessness of our allies, whom we have treated like children so thoroughly that they have become as powerless as children
    5. No vital American interest

    “When the facts change I change my opinion. What do you do, Sir?”

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  6. Profile Photo Inactive

    That there are individual Republicans in Congress who may or may not be hypocrites on this issue does not mean that one cannot be a man of the Right and construct a rational argument in favor of Congressional authorization.

    Moreover, President Bush himself went to Congress, in spite of any particular stance one way or the other of Congressmen, and Constitutionally asked for authorization for the use of force. This seems to me to meet the checks and balances test and perhaps WPA should be formed along these lines.

    I have a hard time endorsing a view of Executive Prerogative that would mean the President Lincoln would have Impeachment proceedings unleashed on him (even if he was not impeached, just the specter of them beginning proceedings in the midst of civil war) for the suspension of habeas corpus or the Emancipation Proclamation.

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  7. Profile Photo Member

    Impeachment? Ah hem…not a WPA vote, nor a removal of monetary authorization, but straight through the chest and rip out the heart, impeachment. OK, this is just a website, John. You get a do over.

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  8. Profile Photo Thatcher

    I disagree that it is “hypocritical” for GOP members of Congress to demand enforcement of a law that they previously opposed. Hypocrisy is best understood in the realm of values, not rulemaking. Once a rule is established, it is established for everyone, always. The Democrats wanted this thing, they made it the law of the land, they hold it forth as a mandate whenever there’s a Republican in office; then let them live by it as well.

    This is no different than when the Democrats howled about the hypocrisy of the GOP in supporting Ken Starr’s independent counsel investigations in the 1990s – an Act that Democrats actually revived early in Clinton’s term (proudly at the time) against the opposition and caution of the GOP. It is the law of the land. The GOP lost the argument, a new standard was set, and there is nothing hypocritical in demanding that the laws be enforced as conceived on the people who demanded the law in the first place.

    In the end, this may be an easier path to the same solution. If burned by this exercise, the Democrats may be willing to get rid of the War Powers Act.

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  9. Profile Photo Member

    Let’s say that Congress votes to “de-fund” the Libya expedition, but to fund the military in other endeavors. What is to stop Obama from continuing activities in Libya?

    The only real power that the Legislature has over the Executive in the modern large government era is defunding — which will likely be ignored — followed by impeachment.

    Boehner and the rest of Congress should be putting their ducks in a row in preparation of impeachment proceedings. They should de-fund first, but it that is ignored, there is only one option remaining.

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  10. Profile Photo Member

    I think the principle is that the three branches of government are co-equal, and all are charged with upholding the Constitution. I agree with Professor Yoo here: the executive should not obey an unconstitutional law, and it should not wait for the other two branches to fix it, through repeal or court order.

    It bothered me a lot when Bush signed McCain-Feingold even though he thought parts were unconstitutional, and left it to others (SCOTUS) to decide. He had sworn to uphold the Constitution. The courts may have assigned themselves judicial review, but by what principle is that exclusively theirs?

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  11. Profile Photo Inactive

    The Constitution is quite clear that the President does not have unlimited war making capability. This is why Congress has the sole power to declare war. A never ending military mission in hostile territory pretty much falls under “war”, wouldn’t you think?

    The power of the purse isn’t enough, and the Founders knew that when they gave Congress sole power to declare war. Otherwise, the executive could just go out and start one and then dare them not to pay for it.

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  12. Profile Photo Member
    Richard T. Taylor: ….The War Powers Act is the law. In the same way that the administration should defend DOMA, should not the Congress enforce the War Powers Act? The way to get rid of the Act is either to repeal it or for someone to challenge the constitutionality in the courts. …

    Agreed! If a law is unConstitutional, then it must be challenged. There is absolutely no excuse for leaving laws on the books which will not be enforced or followed. That undermines the validity of our laws in general.

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