Only in the liberal media can a weak entreaty to obey the law be considered an act of political warfare. The media have portrayed House Speaker John Boehner’s letter to Barack Obama, merely asking the president for another legal explanation for his war-by-decree in Libya, as “ratcheting up the pressure.” The New York Times correctly noted, “it is not clear if [Boehner’s Congressional] resolution and follow-up letter have any teeth.” It is actually a five-day pass to keep breaking the law.
The text of Boehner’s letter reads, “it would appear that in five days, the Administration will be in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the mission.” After blasting the president’s “refusal to comply with the basic tenets of the War Powers Resolution,” Boehner invokes the Constitution – but not the section many legal scholars may have expected. Instead of noting what our Founding document has to say about the power to declare war, Boehner writes: “The Constitution requires the President to ‘take Care that the Laws be faithfully executed,’ and one of those laws is the War Powers Resolution, which requires an approving action by Congress or withdrawal within 90 days from the notification of a military operation.”
There are only four problems with Boehner’s letter: it’s wrong on the Constitution, it’s wrong on the law, it offers no consequences for wrongdoing, and it came 30 days too late. Obama is in violation of the War Powers Resolution right now.
The Constitution or Cronyism?
Democratic Congressman Brad Sherman of California gave a more accurate assessment nearly a month ago when he said Obama is “shredding the Constitution.” Today, the House passed an amendment Sherman authored to defund the military action in Libya, by a margin of 248-163. (Whether the final bill passes the House remains to be seen.)
More important than Obama’s violation of the law is his violation of the Constitution. Article I, Section 8 vests Congress alone with the ability to “declare War, grant Letters of Marque and Reprisal” and of “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” James Madison’s notes on the Constitutional Convention made clear he understood the term “declare” war as only “leaving to the Executive the power to repel sudden attacks.” Delegate Elbridge Gerry added he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” The Founders recognized from bitter experience that power belongs only to a tyrant.
Since the “kinetic action” in Libya did not repel a sudden attack – it was an act of aggression, not retaliation – the Constitution demands prior Congressional authorization, which Obama did not seek.
War Powers? Yes. Resolution? No.
Boehner apparently believes the War Powers Resolution allows the president to send troops into any conflict, for any reason, for 90 days before seeking a vote of approval. Yet that law, too, specifically limits the president’s powers to responding to “an attack upon the United States, its territories or possessions, or its armed forces.” It then requires the president to report his action to Congress and allows this situation to endure only 60 days, not 90. The relevant section states:
Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces. (Emphases added.)
The 60-day window likely makes the law unconstitutional. But accepting it at face value, the fact remains the president did not gain authorization in that time, nor did he claim the safety of the armed forces necessitated their remaining in Libya 30 more days. Remaining imperils them. Thus, the 90-days referenced in the law are irrelevant.
The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.