Ace on Obama's usurpation of power.

I’m broadly in favor of an expansive view of the power of the executive during wartime, but Ace is really nailing the point here.

Of course he must.

Let’s look at the weakness of those arguing he shouldn’t have to. Ann Althouse rightly calls out the increasingly-useless liberal Dave Wiegel — he’s a long way from whatever “libertarian” beliefs he might have claimed to once have held — for proposing a “despicable” theory of presidential war-making power.

It’s simple: Most of Washington doesn’t want him to [trouble them with an authorization for war]. To coin a phrase: If they want the president to do it, that means it’s legal.

The Constitution does not specify that a secret ad hoc survey of Washington DC insiders as the necessary authorization for war. It demands that Congress — the people’s representatives — cast a vote in favor of it.

via Ace of Spades HQ.

10 thoughts on “Ace on Obama's usurpation of power.”

  1. Sorry, I stand on the side of a basic reading of the Constitution here. Only Congress may declare war. Says so right under Article 1. However, it also makes the President Commander in Chief of all the Armed Forces of the United States. Only he may give orders where and when those forces deploy (either in or out of CONUS). At the time when some Congresscritters were talking about passing resolutions demanding President Bush withdraw troops from Iraq, I suggested that he even sign it into law and then tell them to pound sand, since they could not legally tell him how to direct the troops.

    Congress does not have that power. They can declare war, sure… how do you suppose they could force the President to commit troops? They can’t. By the same token, they can’t stop him from deploying troops. Just as they could declare war and he refuse to prosecute it, he can deploy troops and they refuse to declare war. They hold the purse strings and could stop him in that manner if they so choose. But the fact is, a declaration of war has not occured since 1941 and likely will never occur again (I’d be highly surprised to say the least). Does that mean that every president that got a AUMF violated the Constitution? It’s not like they got a declaration of war (also, I can find zero references to an AUMF in my copy of the Constitution).

    President can deploy the troops, and if Congress disconcurs, let them cut the funds. There’s my reading of it.

    1. Does that mean that every president that got a AUMF violated the Constitution? It’s not like they got a declaration of war (also, I can find zero references to an AUMF in my copy of the Constitution).

      An AUMF can be argued as a de facto and de jure declaration. Nowhere does the Constitution specify what form a declaration must take (though I’ll grant you that there were existing understood standards of international usage).
      President Obama didn’t even do that. By YOUR standard, the President can just order us to invade Canada because he hates hockey, and Congress can only after the fact act to rescind his actions, after the war is well underway.
      Is that at all what we want the standard to be?

  2. All I’m saying is, if the standard is the President cannot deploy troops/planes/ships without the express “go ahead” from Congress, he has a commander that he must answer to for control of the armed forces. This explicitly contradicts his role as CinC. And if our reading of the US Constitution is that strict then AUMFs cannot count as Declarations of War and must therefore be considered extra-Constitutional. De facto and de jure are fancy latin ways of saying “close enuff”, but if we’re this strict on the interpretation, then we can’t have it both ways.

    Look, all I’m saying is that I think far too many people are looking at this from the perspective of “Obama bad, so anything he does = bad” which ironically puts US in the hypocritical seat and lets the far Lefties (like Kucinich of the Hot Wife) take the moral high ground for consistancy for opposing Bush AND Obama. And the legalese twists I’ve seen folks on the Right contort themselves into to make what Bush 43 did = ok while leaving Obama = bad is a bit ridiculous.

    The Executive of the US is either CinC, or he isn’t and has to play “mother-may-I” with Congress. In effect, giving Congress a veto over troop movements. I don’t see any other way to read it (and don’t quote me “War Powers Act” as that was Congress trying to seize that very power extra-Constitutionally, and not even SCOTUS will touch that one with a ten foot pole).

    1. Well, Congress was given the power to declare SPECIFICALLY to give it the power to restrict troop movements!

      While I’m dubious as to the Constitutionality of the War Powers Act, it at least serves as a guide to the thinking of Congress at that time, and presumably guides the thinking of some part of it today. And there has ALWAYS been tension between the President and the Congress as to the prosecution of wars, even after the declaration. And the guidance of the War Powers Act in re: responding to imminent threats is not at all that restrictive. But should we take the WPA as guidance, vice law, Obama’s actions would not meet that criteria

      And your comparison of Obama’s actions v. Bush’s in Iraq are completely flawed, in that Bush DID secure Congressional approval for actions in Iraq. Obama didn’t.

      Mike, your interpretation is flawed, in that you are investing the President with powers that the Constitution clearly never intended. You’re saying he can fight wars all he wants, just as long as he never calls them wars, right up until the money runs out. That was clearly never the intention of the Founders. What WAS intended was to maintain the unity of command once action had begun. The President has the power to respond immediately to attacks, but not the option of picking a fight, without Congressional approval.

  3. Brad, “The War Powers Act” or “The Authorization to Use Military Force” have been the sender of debate for a long time. The real question becomes, what does the US Constitution require for deployment of our Military on foreign soil? As I understand “The War Powers Act”, this is used only when our Nation is attacked and this is used as a stop-gap until a full “Declaration of War” can be passed. Please understand, the use of the full “Declaration of War” is both a dramatic and a drastic move for the Nation.

    You will have raised some very complex issue, if you look at it through the eyes of the US Constitution. The only time that we should go to war according to the Constitution is only after a “Formal Congressional War Declaration”. Our Congress is the one who establishes our Military Regulations. Yes, POTUS is the Commander-in-Chief of the US Military, but any order that he might give, must be a “Lawful Military Order”. Just because an order comes from the US Pres. does not mean it is a lawful order. This means everybody in the Chain of Command takes responsibility. All of this goes back to the trials at Nuremberg, this is all part of our Federal, Military, and international law to which we have signed on the dozens line, therefore, we are bound to it, with no flexibility.

    Part of the problem is when we look at the approach that Gorge W Bush took on his attack on Iraq. There are a few points to consider, the first being the fact that John Bolton was at Langley, he should’ve never been there. There are absolutely no excuses for this behavior, politics and intelligence do not mix. My last point is this did George W Bush get or even ask for, in writing, a “Formal Constitutional Declaration of War”? The process starts with him.

  4. Quick Corrections- It is “Center of Debate”, not “sender of debate”.

    It was either “John or Josh Bolton”, but neither one had any business being at Langley

  5. The President can deploy the troops, but he can not commit an act of war without Congress actually voting war. The more recent “AUMF”s we have seen are really just war declarations without calling them such.

    The only exception is when US Citizens are in immediate danger and POTUS must act to protect them immediately. There have been situations like that in the past which brought on the unwritten division of the military between the Navy and The Army. The Navy was said to belong to the president, and the Army to Congress.

    Marine Corps vs Army arguments aside, the make up of the Navy is such that it has a logistical tail, but the leash is short because they are limited to what they carry organically. The Army, however, was self-contained as well, with an Air Force, and sea lift command (Army Transport Service in the first half of the 20th century), and a huge logistical tail organic in the combat support services, unlike the Marines, where everyone is mostly infantry with secondary jobs such as cook, etc. Even their Chaplains and Medical Corps belong to the Navy.

    POTUS, has at times, however, engaged in a bit of imperial finagling in places like Haiti and Nicaragua, both places where Chesty Puller made a name for himself. But POTUS had a hard time actually pulling us into a full blown war using just the Navy. FDR wasn’t able to do it in the North Atlantic, although he managed at Pearl Harbor, and LBJ in the Gulf of Tonkin, with a little bit of fact stretching.

  6. Quartermaster, You write, “The President can deploy troops, but he can not commit an act of war without Congress actually voting war. The more recent “AUMF”s we have seen are really just war declarations without calling them such.”

    This is just your first paragraph, very interesting, let’s take a look at it. You write, “he can not commit an act of war.” Fine, what is an act of war, with examples? Is an Embargo an act of war? (Hint: “Embargo Act of 1807”)

    The reason people wanted to get away Declaration of War is this, it put’s everybody on a tighter leash. This would be all of the citizenry, including our leaders, especially our President. Details Matter!

  7. The “No Fly” zone over Libya is an act of war. A blockade is an act of war. I’ll go this far: Anything that impinges on the sovereign prerogatives of a government is an act of war.

    Like it or not, AUMFs are just another name of a declaration of war. The semantic reasoning behind saying that instead of “declaring” war is just a Lawyer’s game.

    Jefferson’s Embargo Act would not be an act of war. It is the prerogative of a country to engage in trade with whom it will. No country has a right inherent in sovereignty to try with a given country. It does have the right to fly aircraft in its airspace, or put its ships to sea, and to defend itself against overthrow, but not against its own citizens. Some countries, however, do not have citizens, but subjects. Great Britain is a good current example. A monarch, however, does not have the right to abuse his/her subjects. But, then, we are getting into another subject, that of legitimacy. And that’s another can of worms.

  8. Quartermaster, I will admit, I was in error to use the word, “embargo”. I had writers’ block and could not think of the term, “blockade”.

    Sir, don’t get old, it *sucks*, but it’s better than the only other alternative.

    *Note, this is NOT the Law or Standard Operating Precedent of the US, it’s just an “opinion” from one very Grumpy Disabled Old Vet.* I believe our ‘Founding Fathers’ intentionally made it difficult to get a ‘Declaration of War’. As I understand it, the ‘Declaration’ was, at the time necessary for any OCONUS Military action including deployment. The primary concern for the Military is the protection of CONUS.

    We are at an interesting point in our history, the same instrument that makes POTUS, The Commander-in-Chief, Art. 2, Sec. 2 also gives the whole Congress the power to “Declare War” or whatever you want to call it, Art. 1, Sect. 8. Hey, wait a minute! Doesn’t that infringe on POTUS and his powers as Commander-in-Chief? You’re right, it does, just like it should!

    QM, this is *not* a lawyer’s game, but a citizen’s game. -Grumpy

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