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Right Turn
Posted at 03:00 PM ET, 06/17/2011

War powers hypocrisy

It’s hard to overestimate the amount of hypocrisy in Washington on process matters. Politicians and many pundits view filibusters, signing statements and the like as strictly a matter of political expediency. There is no better example, unfortunately, than the War Powers Act.

John Yoo reminds us in the Wall Street Journal:

By accusing President Barack Obama of violating the War Powers Resolution, House Republicans are abandoning their party’s longstanding position that the Constitution allows the executive to use force abroad, subject to Congress’s control over funding. Sadly, they’ve fallen victim to the siren song of short-term political gain against a president who continues to stumble in national-security matters.
To be sure, it’s easy to understand Republican outrage in light of Mr. Obama’s blatant constitutional about-face. On Wednesday, the White House released a 32-page report stating that Mr. Obama had authority “as Commander-in-Chief and Chief Executive” to launch the Libyan war because he decided the war advanced “important U.S. interests.” Those important interests include limiting “violence and instability” in the region, preventing “an imminent humanitarian catastrophe” and showing the people of the region “that America stands with them at a time of momentous transition.”

Even worse, the Republicans are heading to court (looking for an activist judge, maybe?) despite clear precedent that “individual congressmen do not have standing to sue the president when the legislature as a whole has failed to act.” In addition, Yoo tells us that in a prior case, “Judge Laurence Silberman wrote separately that the exercise of war powers was a ‘political question’ for the president and Congress, not the courts. The Supreme Court has consistently turned away every case disputing the president’s decision to start wars abroad, and there is no reason to think it will change its ways now.”

For constitutional devotees ( Tea Partyers, I’m talking to you) this should be unacceptable. If you take seriously the Commerce Clause limits (in the Obamacare case), then you should take seriously Article II. There is a remedy under the Constitution if Congress doesn’t like the Libya operation: legislative oversight and the power of the purse.

Cutting off funding is drastic and hence never invoked. But the threat of a funding cutoff, the ability to delay nominations and the bully pulpit are all acceptable means of attempting to check the chief executive. I write this as someone who believes that there is a national interest in booting Moammar Gaddafi and that this war effort has been botched so badly we may not succeed, or will succeed, after unnecessary expense and loss of life.

But for now President Obama is the commander in chief. You think he won’t get it right or he’ll drag this out? We have an election in 2012. And Congress can use its powers, we hope without defiling the Constitution, to try to influence the course of the war.

By  |  03:00 PM ET, 06/17/2011

Categories:  law, National Security, House GOP

 
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