March Madness Over Libyan Skies

President Obama’s decision to attack might have been unwise, but it was constitutional.

© St. Louis Post-Dispatch
Tad Armstrong

If you would like an honest answer to questions concerning the constitutionality of legislation or executive branch decisions, steer clear of any lawyer who graduated from a prestigious law school, has taught constitutional law and is Democratic politician. Ouch! That last “unqualification” might hurt a bit. Although I don’t shy away from criticizing Republicans, it has been my studied observation that one is more likely to get a trustworthy answer from a Republican than from a Democrat when it comes to presidential war powers.

Secretary of State Hillary Clinton, a Democrat, graduated from Yale Law School (currently ranked first of 200 by Top-Law-Schools.com) and taught constitutional law at the University of Arkansas (84th). President Barack Obama, also a Democrat, graduated from Harvard Law School (second) and taught constitutional law at the University of Chicago (fith). Vice-President Joe Biden, another Democrat, graduated from Syracuse University College of Law (100th) and taught constitutional law at Widener Law School (in the bottom 100). Oh, well, maybe Joe doesn’t quite fit the “prestigious” law school credential.

Here is what each of them have said about presidential war powers prior to March Madness Over Libya.

With regard to the potential for military force against Iran in 2007, Hillary Clinton, who then was a U.S. senator from New York, said: “If the (Bush) administration believes that any, any use of force against Iran is necessary, the President must come to Congress to seek that authority.”

Also, in 2007, then-Sen. Joe Biden, after letting us know how smart he thought he was (“I taught separation of powers and constitutional law”), said: “The President (George W. Bush) has no constitutional authority to take this nation to war…unless we’re attacked or unless there is proof that we are about to be attacked. And if he does — if he does, I would move to impeach him.” Biden said he had consulted with no less than five constitutional scholars before making that statement.

Then U.S. Sen. Obama added his Democrat-politician-constitutional professor-Harvard-influenced opinion: “The President (George W. Bush) does not have the power under the constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” Yet, on March 19th this President did just that when he ordered our military to drop bombs over Libya without the approval of Congress.

At least 10 House Democrats are questioning the constitutionality of the president’s actions. Rep. Dennis Kucinich, D-Ohio, and Rep. Ron Paul, R-Texas, believe the president’s no-fly zone adventure to be impeachable. If you believe the foregoing opinions of Clinton, Biden and Obama, perhaps impeachment would be in order. How did we let these three rise to the top?

Whom should we believe? The Congressional War Powers Resolution of 1973 purports to define a president’s Article II powers as commander-in-chief by limiting his ability to introduce our military into hostilities (or imminent hostilities) only pursuant to a declaration of war or pursuant to specific statutory authorization or in response to an attack upon the United States or its armed forces. In 2008, a bipartisan panel urged Congress to fix the War Powers Resolution which has been regarded as unconstitutional by every president since it was passed.

I am no fan of this president, but as much as I would like to agree with his own 2007 warning to President Bush on this subject (as well as the 2007 definitive opinions of those well-known pre-eminent constitutional scholars Biden and Clinton), I cannot. I believe a sitting president has the power as commander-in-chief to act as this president did last month.

Does that make it wise? President George W. Bush sought and obtained Congressional authority by an overwhelming bipartisan margin to engage our military in Afghanistan in 2001. He also followed that policy before engaging in Iraq in 2002. You remember him. He was that renegade cowboy the left charged with riding roughshod over the Constitution.

We currently have four Supreme Court Justices who consult the Constitution before ruling, four who check wind direction before rendering decisions and one who is less predictable than the weather. When it comes to predicting the outcome of a war powers question before the court, any so-called scholar whose opinion is as emphatic as those of then-senators Clinton, Biden and Obama before the Libyan assault began should be considered stunningly ignorant or willfully deceitful.

By the way, Joe, how many constitutional scholars does it take to screw up an opinion? I can find at least five to support whatever speech you wish to make. Perhaps you should consider hedging your bets next time.

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