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The Spectacle Blog
It’s absurd that President Obama has sought no Congressional authorization on the war-that-he-won’t-call-a-war in Libya. The approval of the UN Security Council confers much less legitimacy than the approval of the elected representatives of the American people, and it’s troubling to see the White House behaving as if the opposite were true.
That said, I can’t say I find Jim Antle’s posts arguing against the Constitutionality of the President’s actions particularly persuasive.
Jim writes that unlike in Korea, in Libya there is “no larger geopolitical struggle in place.” Given the events unfolding in the Arab world, it seems pretty clear to me that this is absolutely wrong, but even if you disagree, this seems like the sort of policy question that can’t possibly be dispositive for Constitutional purposes. As for the reference to “fights with pirates, Indian tribes, and cattle rustlers that were clearly not wars” — I’m sorry, am I misreading this, or is Jim actually trying to argue that the Libya War is a war but the Indian Wars were not? Tell that to Custer.
This all began with Jim’s Friday salvo against John Yoo, objecting that Yoo does not cite the text of the Constitution in the short version of his legal argument, which ran at The Corner. I assume Jim must have missed the op-ed-length version of Yoo’s argument, which ran the same day in the Wall Street Journal, and lays out an explicitly originalist case:
Their praiseworthy opposition to the growth of federal powers at home misleads [some Republicans] 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.
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.
Maybe this analysis is wrong, but I don’t see anything in Jim’s posts that refutes it (or really even tries to).
William R| 3.30.11 @ 7:24PM
Tom Woods and Kevin Gutzman destroyed John Woo in their book, "Who Killed the Constitution"
http://mises.org/misesreview_d.....ontrol=338
Warrior | 3.30.11 @ 10:04PM
Both are excellent historians and Constitutional scholars. I highly recommend their writings.
BD57| 3.30.11 @ 8:35PM
Careful, John - some of the natives won't appreciate this.
DRed| 3.30.11 @ 8:37PM
John Yoo calling any resistance to the growth of executive power praiseworthy is one of the more disingenuous things I've ever read.
Quartermaster| 3.30.11 @ 9:15PM
Yoo being a member of the Lincoln Bund, that is an understatement.
Quartermaster| 3.30.11 @ 9:19PM
Hamilton disagreed with Madison, if we simply compare quotes. I seriously doubt that Madison meant the president held the sword in the same way the British King did. Hamilton made the same analogy, but limited it to the fact that both King and POTUS were the supreme commanders. However, Hamilton also stated the King could declare war, while POTUS could not.
Frankly, Yoo's view in the matter supports Lincoln's aggressions against the south and is entirely consistent with a view of radical expansion of executive power. Bluntly, if you find Yoo's position persuasive, then you could use with a little remedial reading and some intensive study of where the founders actually stood.
Red Phillips | 3.30.11 @ 10:18PM
I don't think Hamilton disagreed with Madison. If anything, Madison was closer to the Antle position. (That's not really the right way to put it because no side at the time was close to the Yoo position, but I suspect you get what I mean.) Madison even opposed a standing army, and the arch-Federalist Hamilton was more likely to favor an energetic executive. It's pretty sad when the energetic executive folks of today don't even have a friend in Hamilton. But back to the point, Madison was just making an admittedly imperfect comparison.
Zbigniew Mazurak | 3.31.11 @ 7:15AM
Madison did initially oppose a standing army, but later, in 1789, he introduced, and got passed, a bill creating such an army and a department to manage it. Later, after the War of 1812 broke out, he began to support a strong military.
Hamilton explained in Federalist #69 that the CINC clause authorizes only an honorary role for the President as CINC.
Red Phillips | 3.30.11 @ 10:08PM
"to resist Washington's indispensable role abroad"
This is not originalism. This is textbook neocon ideological blather. It is a predetermined cause desperately seeking a justification.
As I have stated on several occasions, the Founders did not intend the US to play the role of "indispensable" nation on the world stage. There was a serious debate over whether we should even have a standing army. The reference to Congress "raising" an army implies that there wouldn't be a massive one already sitting around. The limitation on appropriations for the military to two years was a compromise with the anti-standing army faction. If you want the US to be the "indispensable" nation ensuring "pax Americana" as one of our hyper-interventionists friends calls it, then that is your prerogative, but please spare yourself the embarrasment of trying to square it with the Founders and originalism.
"Congress is too fractured, slow and inflexible to manage war. Its loose, decentralized structure would paralyze American policy while foreign threats loom."
This is a transparent apologia for the hyper-interventionism Yoo supports. He's absolutely right. It is difficult to run an Empire, even a supposedly benevolent one, when you have to run war making decisions by a pesky, meddlesome Congress. Originalism my a**.
Girls in Australia | 3.31.11 @ 3:38AM
Be extra careful John. The locals will get mad at you...
Kingofthenet| 3.31.11 @ 5:13AM
It's just going to take a few thousand CIA 'advisers', and some Private Assistance 'Help' from 'Xe'...You know people helping people.
Zbigniew Mazurak | 3.31.11 @ 7:13AM
John Tabin is FLAT WRONG, as is John Yoo (an unrepentant criminal who is currently sought Dead or Alive by a Spanish court with an international arrest warrant).
Yoo's argument is NOT originalist. It's a 21st century neocon argument. An originalist claim is one which rests on the ORIGINAL understanding of the Constitution (i.e. how the Founding Fathers and the American public of their time interpreted the Constitution). Yoo's claim is the polar opposite of what the Founders claimed.
The CINC clause only grants the President a purely ceremonial/honorary role; his prerogative to appoint officials and officers and commission all officers of the United States stems from other clauses.
The Declare War clause says that the Congress has the prerogative to declare war. No other branch of the government has been granted such a prerogative in the Constitution, meaning that ONLY the Congress can start wars. Not the executive, and not the judiciary.
James Madison, the Father of the Constitution, explained why it is so. He argued, and rightly so (I believe), that had the right to start wars been given to the President (as Yoo falsely claim it is), the temptation for any one man to start wars would be too big for him to resist. As President, Madison, faced with repeated treacheries by the Brits, asked the Congress to declare war; we now know of this war as the War of 1812, although it continued until 1815.
The US is a constitutional Republic with a federal government of limited, explicitly enumerated prerogatives, and anything not authorized to the federal government is prohibited of it.
There are indeed many threats to the US around the world, ranging from the Taleban, AQ, and Hezbollah, to NK and Communist China. But that doesn't change the Constitution's provisions. It also doesn't mean that they are outdated. If need be, the Congress can simply declare war on these enemies of the United States.
As for the fact that "In the century before the Constitution, for example, Great Britain fought numerous major conflicts but declared war only once beforehand." - this is precisely one of the very reasons why the Founders rebelled against the British king and why they included the Declare War clause in the Constitution. They had enough of undeclared, unauthorized, expensive wars waged by whimsical British kings, wars which they, along with metropolitan British taxpayers, had to pay for (the heavy taxes levied to pay debts resulting from the Seven Years war were among the reasons the Founders rebelled).
John Yoo is an utterly discredited monarchist whose claims are the polar opposite of what both Madison and Hamilton claimed.
bd57| 3.31.11 @ 11:36AM
Are you arguing no use of force is permitted absent a declaration of war?
Or that there's no constitutional authority for Obama's particular use of force?
Hook| 3.31.11 @ 7:22AM
John Yoo is a war criminal?? I find it incredible how many war criminals were in the Bush administration and Obama's almost exact conduct is worry of praise. Are you sure your statement, Zbig, is not purely political?
Hook| 3.31.11 @ 7:23AM
I meant worthy of praise obviously.
fwb| 3.31.11 @ 12:04PM
Yoo and many others miss or ignore one other delegation of power. Congress makes the rules for governing and regulating the land and naval forces. (Article I, Section 8, Paragraph 14) Not the President. Not the courts. The President, as executive, gets to see to it that the rules and regulations that Congress makes are properly executed. Nearly half the powers granted deal with Congressional power over the military, calling forth, providing for, maintaining, declaring, etc.
And the President's authority (as well as that of Congress, etc) is solely within the geographical area known as the United States. There is no authority outside the borders of the several States that comprise the Union known as the United States of America.
The President may not expend any funds whatsoever since he has no funds. And Congress may not delegate funds to be expended by the president because once delegated from We the People only Congress may exercise the power. Delegata potestas non potest delegari.
Congress and only Congress can authorize the expenditure of any funds and then Congress is limited in those expenditures by the first paragraph of Article I Section 8 to "the common Defence" of the entity the United States (and two other Union wide areas) . No funds can be expended beyond defending the geopolitical boundaries of the Union. No preemptive actions. Nada. No authority to do so regardless.
No treaty may be made to alter this fact because all treaties made must be made under the authority of the United States and the entire authority of the United States is circumscribed by the limited powers authorized in the Constitution.
The Constitution is a whitelist, not a blacklist. All that is not granted is withheld.
My ad hominem for folks who ignore the black and white is "liar".
Oldefarte| 3.31.11 @ 3:58PM
Webster's defines war as ARMED CONFLICT, AS BETWEEN NATIONS; ANY FIGHT. Our government was established with three EQUAL branches, each as a check/balance upon the others. The Johnson administration went before congress for approval of its initiated actions in Viet Nam, and same was granted [I sat in the Senate chamber as a witness to same in the 1960's]. It's called the power of ADVISE & CONSENT. This present administration is required by law to do so in this Libyan situation, but has not done so due to their political philosophy of I CAN DO ANYTHING I WISH TO AND NO ONE CAN MAKE ME DO OTHERWISE attitude [ie their healthcare legislation, prevention of oil drilling, suing Arizona over immigration, failure to grant FOIA requests, etc]!!!!!!!!!