The two episodes — Bush and terrorist surveillance, Obama and the War Powers Resolution’s application to U.S. military action in Libya — are not precisely parallel. Bush’s actions were, of necessity, hidden from public view and therefore without an alternate remedy. Obama’s decision that U.S. activities in Libya do not amount to “hostilities” and therefore do not require congressional approval under the War Powers Resolution is on display for all to see.
Unlike the surveillance program, Congress knows what’s happening in Libya and can pull the plug on funding if it wants. In addition, the constitutional status of the War Powers Resolution is dicey; presidents have been wriggling their way around it for years to avoid head-on collisions with the legislative branch.
Nonetheless, the comparison underscores the extraordinary — and, in my view, extraordinarily unwise — nature of Obama’s handling of the war powers issue. As The New York Times first reported, the administration jettisoned the ordinary process by which the executive branch determines the legality of its own actions. Normally, that decision would be made by the OLC after considering the views of other departments. The president has the undisputed power to overrule OLC, but that is an extremely rare occurrence.
Having the imprimatur of the OLC is the constitutional equivalent of the Good Housekeeping seal of approval. For example, before the administration launched military operations in Libya, it obtained an OLC ruling that the president did not need to obtain prior congressional approval. The White House was happy to brandish the opinion to rebut any question about its authority.
In the current episode, the White House appears to have chosen to avoid a formal opinion — one that it knew it wasn’t going to like. The question involves the applicability of a provision of the War Powers Resolution that requires the president to terminate military operations within 90 days of commencing hostilities unless it obtains congressional approval.
The administration’s strained argument is that the current U.S. involvement does not rise to the level of “hostilities” triggering the War Powers Resolution. Pentagon general counsel Jeh Johnson and acting OLC director Caroline Krass reportedly disagreed. But Obama found surprising support from the State Department’s legal adviser, Harold Koh, who had been a leading academic critic of unrestrained presidential war-making power.
Granted that the president gets the final say and even assuming he got it right in this case, this is a terrible approach and a dangerous precedent. Cherry-picking your way to the desired legal result is a sure-fire way to get the law wrong. A senior White House official described the issue to me as a “political question” with “no clear answer,” adding: “Someone might conclude the activity rises to the level of hostilities. Others might conclude it does not. Ultimately it’s the president’s judgment call and he made it.” The answer may be unclear, but this is not a political question — it is a statute we are construing. That’s what the OLC is good at, and what it has a long track record of doing on war powers.
As Harvard Law School professor Jack Goldsmith, who headed the OLC when it questioned the terrorist surveillance program, explained in a blog post, the president’s legal judgment “is inevitably skewed a great deal by wanting to uphold his policy. OLC (and any executive branch lawyer) faces this danger to some degree, but the danger is less pronounced when the initial decision is made in a relatively independent legal office in DOJ as compared to the Oval Office.”
Indiana University law professor Dawn Johnsen, Obama’s initial pick to head the OLC, made a similar point. “I have no problem with the president sincerely disagreeing [with OLC], but it’s so rare. . . . You need to follow a process that builds confidence that the president has reached a considered judgment that the Justice Department is wrong,” she told me.
The White House is the client. It can choose whether to ask its lawyers for advice — or which lawyers to ask. But sometimes even the smartest clients can behave like fools.