Why I’m suing the Obama administration over Libya - By Ron Paul

[archibaldcrane]

So if the president's veto doesn't actually stop anything, where is the check/balance against the congress?

The power of the veto is the check, but the ability to override means the President cannot completely stop the will of a supermajority of the legislature.

The fact that Presidential vetos are almost NEVER overridden shows it's a pretty decent system of checks and balances.

[Plow]

It sounds like Clinton followed it in regards to Kosovo (persuading Congress for a funding vote within 60 days), or am I misreading that above?

Clinton argued that he hadn't gone against it because congress had approved it by approving funding, but that was pretty retarded considering the resolution itself specifically states that approving funding doesn't count as approving the actions.

[Plow]

A bitch ain't in check if she can do whatever she wants if she wants to bad enough.


Also balance

[Rhinox]

It's not illegal if the president does it Nixon was right all along

Fucking lol

[aurik]

Nobody's saying that, but go ahead and construct that straw man if it gets you off.

[aurik]

The War Powers Act has been controversial since it became law.[13] In passing the law, Congress specifically cites the Necessary and Proper Clause for its authority.[14] Under the Necessary and Proper Clause, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

Because it limits the President's authority in the use of force without an official law or declaration of war by Congress, there is controversy as to whether the provisions of the law are consistent with the Constitution. Presidents have therefore drafted reports to Congress required of the President to state that they are "consistent with" the War Powers Act rather than "pursuant to" so as to take into account the presidential position that the law is unconstitutional.

One argument for the unconstitutionality of the War Powers Act by Philip Bobbitt[15] argues "The power to make war is not an enumerated power" and the notion that to "declare" war is to "commence" war is a "contemporary textual preconception". Bobbitt contends that the Framers of the Constitution believed that statutory authorization was the route by which the United States would be committed to war, and that 'declaration' was meant for only total wars, as shown by the history of the Quasi-War with France (1798–1800). In general, constitutional powers are not so much separated as "linked and sequenced"; Congress's control over the armed forces is "structured" by appropriation, while the President commands; thus the act of declaring war should not be fetishized. Bobbitt also argues that "A democracy cannot ... tolerate secret policies" because they undermine the legitimacy of governmental action.

A second constitutionality argument concerns a possible breach of the 'separation of powers' doctrine, and whether this law changes the balance between the Legislative and Executive functions. This type of constitutional controversy is similar to one that occurred under President Andrew Johnson with the Tenure of Office Act (1867). In that prior instance, the Congress passed a law (over the veto of the then-President) that required the President to secure Congressional approval for the removal of Cabinet members and other executive branch officers. The Act was not declared unconstitutional by the Supreme Court of the United States until 1926;[16] therefore, when the Act was violated by Johnson, the House of Representatives impeached him; action in the Senate to remove him failed by one vote.

Here, the separation of powers issue is whether the War Powers Resolution requirements for Congressional approval and presidential reporting to Congress change the constitutional balance established in Articles I and II, namely that Congress is explicitly granted the sole authority to "declare war", "make Rules for the Government and Regulation of the land and naval Forces" (Article 1, Section 8), and to control the funding of those same forces, while the Executive allegedly has inherent authority as Commander in Chief. This argument does not address the other reporting requirements imposed on other executive officials and agencies by other statutes, nor does it address the provisions of Article I, Section 8 that explicitly gives Congress the authority to "make Rules for the Government and Regulation of the land and naval Forces."

The constitution specifically states that Congress is authorized "to provide and maintain a Navy" (Article 1 Section 8). The idea of "maintenance" of a Navy implies that Naval Forces would be a permanent fixture of national defense. Two types of Land Forces are described by the Constitution (Article 1 Section 8): the Militia (armed citizenry organized into local defense forces and state volunteer regiments) which Congress can "call forth" and prescribe the "organizing, arming, and disciplining [training]" of, as Congress did in the Militia acts of 1792; and the Army, which Congress can "raise and support", through regular appropriation acts limited to no more than two years. This division matches how the Revolutionary War was fought, by the Continental Army, raised and supported by the Continental Congress, and local Militias and Volunteer Regiments, raised by the separate Colonies. After the war, under the Articles of Confederation, a small standing Army, the First American Regiment was raised and gradually increased in size over time by Congress before, following the Constitution's ratification, being transformed into the Regular Army. The availability of a standing Army, and the President of the United States being authorized as "Commander in Chief," implies his ability as a military commander to employ forces necessary to fulfill his oath to defend the constitution.

There is also an unresolved legal question, discussed by Justice White in INS v. Chadha of whether a "key provision of the War Powers Resolution", namely 50 U.S.C. 1544(c), constitutes an improper legislative veto. (See Chadha, 462 U.S. 919, 971.) That section 1544(c) states "such forces shall be removed by the President if the Congress so directs by concurrent resolution". Justice White argues in his dissent in Chadha that, under the Chadha ruling, 1544(c) would be a violation of the Presentment Clause. The majority in Chadha does not resolve the issue. Justice White does not address or evaluate in his dissent whether that section would fall within the inherent Congressional authority under Article I Section 8 to "make Rules for the Government and Regulation of the land and naval Forces."

[aurik]

Furthermore, one would assume that a police action taken under the command of NATO wouldn't necessarily constitute a war.

[Kuya]

Right. The veto can be ignored by a strong enough agreement in congress (see: the war powers resolution).

So if the president's veto doesn't actually stop anything, where is the check/balance against the congress?

The veto is the "check and balance", it doesn't matter if it is overrriden by a rare congressional supermajority.

Ok, so it's not 100% clear that he's in violation, if the US has some interest in Al Queda activity in Libya? This is being argued by...someone?

The Obama administration has not argued that involvement in Lybia has any relation to the war on terror, and bringing it up at this point would be, well...

[archibaldcrane]

It's not illegal if the president does it Nixon was right all along

Fucking lol

I think there are arguments to be made that what he's doing is legal (either that the law is unconstitutional or that Al Queda something something) but...I can't say I can comment on the former and the latter is pretty lulzy.

Although since Obama has previously stated that he thinks the War Powers Act is legal, his position is pretty lulzy.

It just bugs the shit out of me that out of the 2 major campaigns and various minor ones that the US is involved in, that ...this is the one Ron Paul is raising a ruckus about.

[aurik]

Basically Kuya is arguing from the position that

1) the involvement in Libya is definitely subject to the War Powers Act and
2) the War Powers Act is a binding, constitutional law

Since both of those are debatable points, any conclusion he comes to is inherently also debatable. Can't build a solid argument on a shaky foundation.

[archibaldcrane]

The Obama administration has not argued that involvement in Lybia has any relation to the war on terror, and bringing it up at this point would be, well...

wait, so what is his argument again? that this isn't the type of hostilities that "qualify"?

[aurik]

I think what he told Congress was that the action in Libya isn't subject to the War Powers Act.

[SwampdonkeyPLD]

wait, so what is his argument again? that this isn't the type of hostilities that "qualify"?

His argument is that these are not hostilities covered by the war powers act.

[Kuya]

Furthermore, one would assume that a police action taken under the command of NATO wouldn't necessarily constitute a war.

Under what basis?

And what this New York Times article revealed is that it isn’t only commentators across the political spectrum who are saying that that interpretation is absurd, but also the President’s attorney general, Eric Holder, the general counsel of the Department of Defense, which is usually renowned for being quite hawkish and pro-war, and most significantly, the head of the Office of Legal Counsel, which is the agency within the Justice Department that’s designed to coordinate all of the different legal opinions within the administration and essentially pronounce the view that’s binding on the executive branch of the president’s authority. And while the president does have the power, theoretically, to override the conclusions of the Office of Legal Counsel, it’s extraordinarily rare, as the New York Times called it, for that to happen. It’s very hard to even find examples where that took place.

And so, what you had here is really an end run around by President Obama to cherry-pick lawyers. He points to his own White House counsel, who’s a longtime political operative—and that position, the White House counsel, is known for being very subservient to the president—and a low-level position in the State Department, the legal adviser, Harold Koh, who agree with him. But the actually authoritative and top legal positions in the administration are all lined up against him, and yet he’s disregarding it and saying that he has the power to wage this war without congressional approval.

GLENN GREENWALD: OK. So, the War Powers Resolution essentially says that the president can wage war for 60 days, when there is the national security of the United States that’s at risk. That isn’t even the case in Libya. So there’s a strong argument to make that he didn’t even have the 60-day period, to begin with.

But at the very most, what the War Powers Resolution says is that presidents can deploy the military into hostilities for a period of 60 days without Congress, and if Congress doesn’t approve of the deployment within 60 days, he has to wind up the deployment within the next 30 days. So he essentially has a 90-day period of time in which to conduct a war without Congress. And as you just indicated, that 90-day period has ended. The 60-day period ended a month ago without any congressional action.

AMY GOODMAN: I wanted to play a clip of this interview from the PBS NewsHour, Senate Majority Leader Harry Reid saying he supports the President’s view.

SEN. HARRY REID: The War Powers Act has no application to what’s going on in Libya.

JIM LEHRER: None?

SEN. HARRY REID: I don’t believe so. You know, we did an authorization for Afghanistan. We did one for Iraq. But we have no troops on the ground there, and this thing is going to be over before you know it anyway. So I think it’s not necessary.

AMY GOODMAN: “Over before you know it.” Glenn Greenwald?

GLENN GREENWALD: Right. Well, of course, the idea originally was that this would be a matter of only weeks, not months. The idea was that we would do nothing other than create a no-fly zone to protect civilians in a couple of places in Libya. And that has wildly morphed into what is clearly an effort to kill Gaddafi, to change the regime of Libya, and then to reconstruct the Libyan government in a form that we like better.

But what’s particularly dishonest about Harry Reid’s comment is that if you read the War Powers Resolution, it says nothing about troops on the ground. What it says is that any time American forces are deployed into hostilities, congressional authorization is required. So it’s not surprising that Harry Reid, being a good, loyal, dutiful Democrat, is defending Barack Obama’s law breaking. Republican leaders in the Congress did the same thing continuously when George Bush was president. But what is a little surprising is that he’s so poor in the way that he does it, because what he’s saying about the War Powers Resolution is completely false, and what he’s saying about the war in Libya—it will be “over before you know it”—is even more false, given that it’s already dragged on for much longer than was originally anticipated, and there’s really no end in sight.

http://www.democracynow.org/2011/6/2...a_be_impeached

[Kuya]

wait, so what is his argument again? that this isn't the type of hostilities that "qualify"?

Like people already mentioned, he is arguing that Lybia does not fall under the War Powers Resolution. So yea, he is saying it doesn't "qualify".

[Rhinox]

No really frost owes Nixon an apology.

Just so long as the president can hire his own legal advisor he can cherry pick arguments that support his own. See;enhanced interrogation

And his supporters so eager to justify his actions regurgitate what the press secretary wants you to believe

[aurik]

Sorry quoting Some Dude On The Internet does not make for a conclusive answer. In fact, you won't be able to find a conclusive answer, because the people who would have the final say on this question is the Supreme court, but they won't get involved.

Suffice to say that the answer to the these questions ("what is hostilities, and at what level is that constitutional?") are significantly murky that when you just assume an answer one way or anther, all of your following conclusions invalid.

[archibaldcrane]

Yeah, unless Obama is going to reverse course on his opinion that the War Powers Act is constitutional, he's in the wrong here. It's much more likely that he realizes nothing will come from his ignoring of the War Powers Act and he doesn't want the war to be used as political football.

Which is kinda fucked up, ...but considering I don't really have much of a problem with our participation in this NATO-led action...whatever. There's better things to be mad at Obama about.

[Kuya]

Sorry quoting Some Dude On The Internet does not make for a conclusive answer. In fact, you won't be able to find a conclusive answer, because the people who would have the final say on this question is the Supreme court, but they won't get involved.

Suffice to say that the answer to the these questions ("what is hostilities, and at what level is that constitutional?") are significantly murky that when you just assume an answer one way or anther, all of your following conclusions invalid.

I'm quoting other people to add specific information that i don't have.

And my position might be debateable, but it's certainly stronger than yours, because your stance amounts to saying that i'm not 100% right.

[SwampdonkeyPLD]

How could anyone be supportive of this action? Even from a non-legal standpoint.