Congress, Libya, the President, and Judge-Worship

Who died and made the judge king?

A month ago, we wrote how President Obama's attack on Libya had become illegal.  Under the decades-old War Powers Resolution, a President has the right to start a fight, but he has to file reports with Congress and preferably ask permission within a month.  Obama didn't bother to do either.

Every president since Nixon has argued that the War Powers Resolution is unconstitutional.  Nevertheless, until now they've all obeyed it, while steadfastly insisting that they're only doing it as a courtesy and not because they have to.

Obama instead chose to thumb his nose at Congress, carrying on the fight as long as he jolly well pleased and in whatever way he felt best.  He recently gave what he claimed was a report to Congress, but it was so absurd on its face - Libya is not a "hostile action"? - that Congress became even more enraged.

No government entity can afford to be totally ignored for very long.  A great deal of government power comes from the illusion that it has power - in reality, you are very unlikely to be gunned down by a cop unless you're shooting back at him, but most sane individuals still treat cops as if they'd as soon shoot you as look at you.  Knowing that a cop isn't armed, well, that doesn't seem to work well even in England anymore.

So Congress had to send a strong, unmistakable message that the President is not the King, that Congress is still relevant, and that the Constitution allows them to call Obama to a stern reckoning.

What did they do?  They sued him.

Amid growing criticism in Congress of President Barack Obama's handling of airstrikes against Libya, a bipartisan group of lawmakers including Rep. Roscoe G. Bartlett of Maryland sued the president Wednesday, saying he overstepped his authority when he committed the U.S. military to the conflict in March.

Bartlett, Republican Rep. Ron Paul, Democratic Rep. Dennis Kucinich and seven other House members say Obama has violated the Constitution and the 1973 War Powers Resolution by failing to seek congressional approval for the military involvement against the government of Moammar Gadhafi.

Who Died and Made the Judge King?

It is transparently obvious that Barack Obama is violating the War Powers Resolution.

There are a whole lot of other constitutional violations that are transparently obvious about the Obama administration, though, as we've discussed extensively.  Of course, many of them long predate Obama's victory or even his birth.

Where does the Constitution give the federal government the authority to involve itself with education in, well, any way at all?  Yet we have an entire Department of Education, grown by Republicans and Democrats alike.

Where in the Constitution is there any authority for the federal government to take money from one individual and give it to someone else, other than for services rendered?  Long, long ago, Col. Davy Crockett, at that time a representative from Tennessee, not only understood this principle - he assumed that everyone else in Congress knew it too:

Mr. Speaker – I have as much respect for the memory of the deceased, and as much sympathy for the sufferings of the living, if suffering there be, as any man in this House, but we must not permit our respect for the dead or our sympathy for a part of the living to lead us into an act of injustice to the balance of the living. I will not go into an argument to prove that Congress has no power to appropriate this money as an act of charity. Every member upon this floor knows it. We have the right, as individuals, to give away as much of our own money as we please in charity; but as members of Congress we have no right so to appropriate a dollar of the public money.

The bill he opposed was a grant to the widow of a war hero!  How much more appalled would he have been at the idea that government should support individuals who've not only not worked for the government a day in their lives, but for no one else either?

Yet, of course, our government has promised trillions of dollars we don't have to people who've never earned it.  The Constitution is a dead letter in so many other areas; why not also in matters of war?

There's a good reason we've arrived at this awkward position: pusillanimous "leaders" have wimped out from defending the Constitutional authority granted to their office, and instead expected judges to do their dirty work for them.  Let's look at one of the most notorious examples of this cowardice, President George W. Bush's signing John McCain's campaign-finance reform bill:

Provisions of the legislation were challenged as unconstitutional by a group of plaintiffs led by then-Senate Majority Whip Mitch McConnell, a long-time opponent of the bill. President Bush signed the law despite "reservations about the constitutionality of the broad ban on issue advertising." He appeared to expect that the Supreme Court would overturn some of its key provisions.

Think through that again: the President signed a bill he believed was unconstitutional!  Yes, the bill was popular at the time; lots of stupid and unconstitutional things are popular.  Once a bill becomes law, the President is obliged to obey it - but it had not yet.

The Constitution gives the President the power to veto bills and to write Congress back with his reasoning.  Why didn't the President veto the bill and write back that it was unconstitutional?  He was too much of a wimp; he figured he could have his cake and eat it too, by signing the bill but letting the Supreme Court declare it invalid.

Unfortunately, they didn't; to everyone's surprise, the Court upheld the bill for several years.  Only last year did the Supreme Court finally figure out that preventing speech about politics is the exact opposite of freedom of speech, horrifying liberals who appreciated the ability to shut up people they didn't like as all tyrants do.

The entire fiasco could have been easily avoided if George W. Bush had done his job.  It could also have been avoided if Congress had done its job and not passed an unconstitutional bill.  But they didn't.

Man Up!

How have we reached a point where both the Executive Branch and the Legislative Branch defer to the Judicial Branch to decide what will be?  That was never intended by the Founders.  The three branches were designed to be co-equal, but if there was a less important branch it was the Judicial.

The Federalist Papers addressed this very issue, in #51, "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments."  Alexander Hamilton and James Madison bluntly said:

It is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates[emphasis added]

Except, of course, that it doesn't, and hasn't for some while.

There's no reason for that other than political cowardice.  Our Founders foresaw the problem of power struggles between the branches, and prepared for it:

To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.   [emphasis added]

In other words, the Founders carefully gave each branch the power to smack down a different branch that was getting too big for its britches.

For all Dennis Kucinich's fine words about how Obama has stepped out of bounds in Libya - and indeed he has - he simply wants to pass the buck to an unelected judge.  The judge, he hopes, will augustly waggle his finger at the President, who will shamefacedly give obeisance to His Honor and quietly retreat to his corner like a good little boy.

Balderdash!  Fight your own fights, Congress, using the power granted to you by the Constitution!

At least Speaker of the House Boehner has some idea of the proper Constitutional approach:

Speaker John Boehner (R-Ohio) on Thursday said the Obama administration failed to answer all his questions about the U.S. mission in Libya and raised the possibility that the House would move to cut off funding for the operation.

Now that is the way to do it.  The Constitution explicitly gives the House of Representatives - the People's House - the power of the purse.  If Congress does not want a war in Libya, it has merely to stop spending money on it; then, if Obama wants to keep fighting, he'll have to pay for it out of his own book royalties, assuming Michelle signs off on it.

Until then, complaints about Libya are mere posturing, a sound and fury signifying nothing.  In this case, the buck stops with Congress, and they should be held accountable just as much as the President.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Law.
Reader Comments

Excellent, and I completely agree, but if I may quibble with one thing.

>Under the decades-old War Powers Resolution, a President has the right to start a fight,

The government doesn't have "rights." People have rights; the government and its various branches have powers, and only those powers specifically delegated to it by the people.

June 21, 2011 11:39 AM

The only lawful mechanism to alter the Constitution is by amendment.
The 'War Powers Act' is constitutionally ultra vires, as it is an attempt by the legislative branch to abdicate it's own constitutional responsibilities and powers by statute.
The only legal and lawful war is by constitutional "declaration of war" by Congress.

The entire 'federal government' has been illegitimate for the past sixty years. This is utterly blatant to any sane and critical thinker.
"Practical Politics" cannot trump the law of the land, it generates a delusional system. It should be recalled that everything that Hitler did was "legal" under the statutes of Nazi Germany.

June 21, 2011 11:55 AM

Addressing Karl Ketzer,

His point is well taken, but inadequately expressed.

He says, "The government doesn't have "rights," and this is so. However "rights" are understood as "powers" as well. The distinction of the powers of the people and the powers of government is in 'Rights' v 'Authority'.

June 21, 2011 12:04 PM

"Every president since Nixon has argued that the War Powers Resolution is unconstitutional."~Article

And Nixon was correct, as I have made clear above.
The problem for the executive branch however is that any war is unconstitutional unless duly 'Declared'by Congress. So such arguments by the executive are spurious on their face.

June 21, 2011 12:37 PM

Now, there is this constant chatter that Obama did this, that Bush said that, that Clinton was the other thing. Does anyone really think the US Presendency is anything other than a titular position?
Obammy didn't "decide" anything, no more than that frat brat Bush. This was all taken care of by the White House Attorney's, the "advisers", who are in fact the Handlers for the various "executives" that enter that office. The orders come from high above anyone in the political class.
Politicians are nothing but actors for the TVShow.

June 21, 2011 3:38 PM

Great article!

While I am glad members of congress are taking steps to stop being irrelevant (if even just going thru the motions...hey it is *something*), I really want to see more. I want congress to have its nuts back. I mean what is holding Congress (and Boehner) back from not inditing the president on this? Political posturing, Cowardice? Good for thee, but not for me,What?

Better still why not Congress pass a bill that defines what war is (as if it needs defining to begin with), just start getting their ducks in a row.

June 21, 2011 4:00 PM

Much though we revere the Constitution and the Bill of Rights, it is hardly necessary to reproduce either in their entirety in a comment. A simple link will suffice in future; this one does nicely:

June 21, 2011 4:41 PM

To the Editors, thanks for the tip.

I would like to mention, for any on wishing to understand the 'war powers' that there is no greater expert than Louis Fisher, the premier constitutional scholar on the subject.
His book PRESIDENTIAL WAR POWER is without doubt the most complete exploration of the issue.

June 21, 2011 7:01 PM

In Summation:
The Core National Security Interests for the United States of America truly are summed up in the Bill of Rights. Thus the 'National Security State' is actually an Orwellian term here, as it is a subversion of those very rights. It is the rights of liberty that are the strongest security against despotism from abroad or from within.
But liberty is not a grant of government, the authority of just government is a grant from liberty. A government acting beyond that grant is no longer just, it is instead a criminal racket based in secrecy and conspiracy. A global numbers racket usurped the republic to make the government a protection racket. It has become a global empire, which is a global protection racket. The world is ruled today by a plutocracy of the high banking cartel.
They run every type of criminal enterprise one can imagine through systemic terror.

It simply is not true that: "in reality, you are very unlikely to be gunned down by a cop unless you're shooting back at him"...because in reality you are more likely to get gunned down by a cop that to be killed by a "terrorist", unless you want to use the term in it's proper context.
The numbers of police murders of innocent victims has become pandemic.
You are hiding your eyes again if you think I exaggerate.

June 22, 2011 3:16 AM

There is certainly a good amount of intangible truth, to that statement WW.

Esp, if you take into consideration the terms used. (IE: Crime Prevention ...instead of Law Enforcement)

Limitless Governance, is Government without limits. To paraphrase Lenin's line of thought of "Liberty is a valuable resource, and therefore must be rationed". It all amounts to "security theater".

However; where I who wins. (I have read the book "The Creature from Jekyll Island", so I am familiar with the line of thought, and use to agree with it...until I thought more about it). Looking at the populist movements today (the whole Arab Spring, Greece, the U.S. as reference) None of the rhetoric coming from that direction would necessarily be conducive to supporting a banking cartel model(soak the rich, rich do not pay their fair share...blah blah blah). (unless I just have it wrong)

If these populist movements succeed, then (by their words) all people would be "equal" (which is Utopian just transfers power elsewhere)(tyranny thru majority perhaps...socrates would be sad, that his hemlock warning was not heeded)...and these cartels would would be....s.o.l.

I go back to my Lenin paraphrase, but lets swap out liberty, for money. (With the understanding that money is a vehicle to freedom/liberty...and "effort and personal responsibility" is the cost, which limits the individual) The problem is people (now-a-days) cannot differentiate "society" from "Government" (2 different animals, yet they still insist upon mixing the 2)...and these populists all want the "free lunch".

So who wins? The Banking Cartels/cabals (pending on your flavor of words)? I think certainly not, because if these lazy populists had their way, they would be out on their duff. The Rich? Again nope. The Middle Class? Most certainly not. The Lowest common denominator? YES. Those are the only ones who win, by nature that they have nothing to lose.

It (the only logical end result) is a race to the bottom, to make us all base collectivists (which is not humanity), instead of individual exceptionalists (which is humanity, and if I may, was the end result, and arguably the cause of the Renaissance)

(I apologize if all that seems rambling and fragmented, still putting it together in my head)

June 22, 2011 3:45 PM
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