Overruling two of his senior legal advisers — the Pentagon’s general counsel and the acting head of the Justice Department’s Office of Legal Counsel — President Obama has decided that the U.S. is not engaged in “hostilities” in Libya. Obama has effectively nullified the War Powers Resolution (WPR), which requires the president to end hostilities within 60 days (with another 30 days to withdraw troops) unless he has received Congress’s authorization. In the Libyan war, the deadline for receiving Congressional approval or standing down passed on Friday. President Obama has done nothing to win Congress’s approval.
Obama taught constitutional law at the University of Chicago and campaigned for office on the claim that the Bush administration had ignored the rule of law. Nevertheless, his administration’s flouting of the WPR displays Obama’s fundamental hostility to the regular workings of the political process established by the Constitution and the traditions of American government. Just as the administration brushed aside the Constitution’s limits on the federal government’s powers over the domestic economy, so too it is ignoring a national security law it believes to be constitutional simply because it stands in the way of Democratic Party goals.
As former Justice Department advisors to presidents and attorneys general on the scope of executive power, we agree that Obama is constitutionally entitled to reach his own interpretations of federal law and to instruct his subordinates to follow them. Nonetheless, it is unprecedented for a president to disregard the views of senior Justice and Defense Department legal advisers on a statutory question like this. Moreover, the process by which the president made his determination was more than irregular. The Justice Department was apparently instructed to submit its views “informally” to the White House along with those of more pliant agencies, rather than prepare a legal position for the executive branch as a whole, as has been the regular practice in administrations of both parties for more than 40 years. Obama’s results-driven process makes a mockery of the idea that the Justice Department is the agency in charge of interpreting and enforcing the law for the executive branch.
Obama’s opinion that the U.S. is not involved in “hostilities” in Libya is not merely “aggressive.” It is utterly farcical — on a level with Bill Clinton’s legendary statement that “It depends upon what the meaning of the word ‘is’ is.”
The U.S. military mission in Libya involves firing missile strikes from drone aircraft — some of them obviously targeted at Libya’s ruler, Muammar Gaddafi, his family members, or leaders of his regime — suppressing Libyan air defenses; and providing intelligence, surveillance and reconnaissance to NATO allies. The Obama administration itself informed Congress this week that our military’s “unique assets” are “critical” to the NATO mission. The Pentagon estimates the cost of U.S. intervention at $1.1 billion through September 30.
If these are not hostilities, then what are? By Obama’s lights, President Nixon’s air campaign over Cambodia — the very kind of operation at which the WPR was aimed — would not count as “hostilities.” Nor would President Reagan’s decision to mine Nicaragua’s harbors, or President Kennedy’s Bay of Pigs fiasco. In those cases too, no U.S. ground forces were introduced; there was little to no risk of U.S. casualties; exchanges of fire were limited or non-existent. Likewise, by Obama’s test, a future president could launch multiple drone attacks on Venezuela if Hugo Chavez refused to step down — or even drop a nuclear weapon on downtown Caracas — without engaging the U.S. in “hostilities.”
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.