Reproduced for Fair Use from Reason Magazine

Reproduced for “fair use” from Reason Magazine

The Imperial President at War

Barack Obama continues the long, shameful trend of expanding executive power

Steve Chapman | April 11, 2011

After the 2008 election, Barack Obama was pondering the growth of presidential power. So, ABC News reported, he met with former Secretaries of State James Baker and Warren Christopher "about how to achieve more meaningful consultation between the president and Congress on the use of military force." Yes, he did. Then he went home and laughed till his ribs hurt.

Today, we know Obama's idea of "meaningful consultation" with Congress on such matters: First, he goes to war, and then he makes a rude gesture in the direction of Capitol Hill. Consult this, Boehner!

In this hypocrisy, I should note, he is indistinguishable from most of his former colleagues in Congress. When their party occupies the White House, they defend the president's absolute right to invade, bomb, or strafe any country on Earth. When the other party is in power, they whine and grouse, while doing nothing to impede him.

It's hard to decide which party is more unfaithful to its own principles. Obama, of course, said in 2008 that the president "does not have 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." Last month, he blithely exercised that nonexistent power.

Democrats were largely responsible for the 1973 War Powers Act, which says that when the president sends U.S. forces into battle, he must get approval from Congress within 60 days or bring them home. It is a modest requirement that Obama evidently plans to ignore

In a recent meeting with members of Congress, Secretary of State Hillary Clinton was asked if the administration would respect the 60-day deadline, and she repeatedly dodged the question. When it was asked of Deputy Secretary of State James Steinberg, he said,

"It's a question that cannot be answered in the abstract." Translation: Make me.

Republicans, meanwhile, have acquired a strange new respect for the notion that there are limits to the president's use of military force. This is a sentiment that surfaces in the GOP only when a Democrat becomes president.

It was Republican Richard Nixon, after all, who vetoed the War Powers Act, only to be overridden by Congress. When he sent troops into Lebanon, Ronald Reagan balked at complying.

Then there was George W. Bush, whose legal advisers insisted that the president has virtually unlimited authority in this realm. He requested congressional authorization for the Iraq war while insisting the Constitution gave him the right to invade on his own.

But after losing an election, the GOP takes a less expansive view. When President Clinton bombed Serbia in the 1999 Kosovo war, a group of mostly Republican members of Congress filed a lawsuit to make him end the war within 60 days, as mandated by the War Powers Act. (The courts threw it out.)

The bombing of Libya revived this desire to restrict White House discretion. Ten Republican senators voted for a resolution saying Obama had exceeded his constitutional authority.

You would think conservatives on Capitol Hill would be the most vocal opponents of letting the president make war anytime he wants. They believe judges should interpret the Constitution according to the intent of the framers, and the framers were not champions of the imperial presidency, particularly when it came to military matters.

It's been argued that Congress gets to decide only whether to "declare" war, an empty formality. But Abraham Sofaer, the top State Department lawyer under Reagan, wrote that nothing in the text "signifies an intent to allow the president a general authority to 'make' war in the absence of a declaration."

Those who drafted the Constitution "regarded war and peace as being as much, if not more, a legislative responsibility as an executive one," writes Jack Rakove of Stanford University, author of a history of the Constitutional Convention. "Nothing was left to prerogative but the president's implicit power 'to repel sudden attacks.'"

Save it for the faculty club, professor. In Washington, nobody cares. Today, war is at the sole whim of whoever sits in the Oval Office. One president after another has bulldozed the fences confining him, and each time, legislators have cheered him on or let him get away with it.

The result is that the Constitution's limits on the president have become a quaint irrelevance. Congress may not know much about the constitutional division of war powers, but it knows how to surrender.