Let’s be clear: Obama has the right result, but for the wrong reasons. He doesn’t need to contort the law beyond all recognition to wage war in Libya. Obama could claim that his authority stems from the Constitution’s grant of the commander-in-chief and chief executive powers, which presidents before him have used to attack the Barbary pirates, respond to secession, suppress foreign rebellions, defend allies from invasion, stop the deployment of nuclear weapons near our shores, and halt humanitarian disasters. Congress cannot simply order the president how to use his control over the military, just as the president cannot command Congress where to spend federal money. This balance of power stems not just from decades of practice by the president and Congress, but the understanding of the Framers and the constitutional structure, which give to the president the advantages of acting with speed, energy, and dispatch in a dangerous world.
Obama’s indefensible interpretation of the WPR is transparently driven by politics. The WPR is a liberal icon, passed by a Democrat-controlled Congress over Richard Nixon’s veto in the depths of Vietnam and Watergate. Even when presidents have given it lip service, the WPR has failed in its objective of subjecting presidential war-making to tight Congressional controls. Bill Clinton’s 1999 war in Kosovo was emblematic of that failure; the sole sign of Congress’s support was a supplemental appropriation to pay for the costs of air operations. But liberals like Obama think it is useful to keep the WPR on life support — even while disregarding it themselves — in the hopes of resurrecting it against future Republican presidents. That is probably bad as politics; it is certainly contemptible as law.
Remember that this administration claimed to be “restoring” the rule of law after the purported abuses of the Bush administration. Eric Holder, Obama’s attorney general, made that a theme of his Senate confirmation hearings. And yet in 2009, Holder overrode the views of his own Office of Legal Counsel (just as Obama has now done) in announcing his willingness to defend a statute that would have conferred voting representation in Congress on the District of Columbia. No serious constitutional scholar could think that Holder has a case; the Constitution makes clear that only a “state” is entitled to Congressional representation — and D.C. cannot be made a state without a constitutional amendment. Likewise, Holder has announced that the Justice Department cannot defend the constitutionality of the provision in the Defense of Marriage Act (DOMA) that defines marriage as the union of a man and a woman — even though President Clinton noted no constitutional concerns when signing that law, and no challenge to it has yet prevailed in a federal appellate court. These decisions show an administration that treats the law cynically and manipulatively, to achieve purely political ends. We leave for another day the question of whether Holder, if he truly honored his position as attorney general, ought to resign because of the politicization of the Justice Department under his watch.
When an administration speaks to serious legal and constitutional issues, most of all perhaps in the national security area, it should not be such a spendthrift of its limited capital. And indeed, the failing here is a signature trait of this administration. Obama has an unhappy knack of making exactly the wrong kind of compromises. In this case, he might have made a robust and plausible claim that the WPR is unconstitutional. Alternatively, he might have read the statute fairly and followed it as written. Instead he is clearly flouting the law — but claiming that he isn’t. His performance here mirrors everything that has been wrong with his entire adventure in Libya. Obama’s attack has been too feeble to bring down Gaddafi, but big enough to discredit us for trying and failing; too wrapped up in U.N. legalities, but too little concern over national interests.
John Yoo is a law professor at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. He served as a Justice Department official from 2001-03. Robert Delahunty is a law professor at the University of St. Thomas and a former Justice Department lawyer.