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Another View of the Libya Question

In today’s edition of The Perry County News (6/27/2011), the editorial takes the Obama Administration to task for its legal interpretation and treatment of the War Powers Act of 1973. The editorial presents the Obama Administration’s stance on the law as dishonest and dismissive of our system of government. The editorial presents a sound factual argument for adherence to the act. However, there is also a sound factual argument for the Obama Administration’s position.

           While I lean more towards The Perry County News’ stance on this subject, I think presenting the other side of the argument is necessary for an educated decision on the subject. The editorial raises valid concerns about the system of checks and balances present in our national government and the Administrations complicated stance towards that principle in this case. There is however another principle working simultaneously in our system of government, the principle of separation of powers.

           To discuss this point, one needs to know what the Constitution actually says on war powers. Article I, Section 8, Clause 11 provides Congress with the sole power “To declare war”. This language seems straightforward enough, although some textualists contend that “To declare” does not hold the same meaning today as it did in the 1790s and modern scholars tend to apotheosize the phrase. Congress is also given the power to fund the Army and Navy and to make rules governing and regulating the land and naval forces.

          Article II, Section 2, Clause 1 provides that the President “shall be commander in chief of the Army and Navy of the United States”. It says nothing else on the matter. As with the rest of Article II, much is left for the courts to interpret. So where does executive power end and legislative power begin and vice versa?

           If the President of the United States is Commander in Chief, then it stands to reason that he should have the power to deploy troops in a way he sees fit, as any military commander does. How far does this power extend? That’s a good question because the Supreme Court has not completely addressed this question, although it has provided some clues.

           One glimpse of how executive power should be interpreted via the Constitution comes to us in the case of United States v. Curtiss-Wright Export Corporation (1936). The Supreme Court found that the executive branch had “plenary” powers in the area of foreign policy and national security, especially where there has been a willing delegation of legislative authority to the executive branch (yes, that’s a problem in and of itself). If the executive branch is granted plenary (meaning whole with few limits) powers in these areas, the President has few constitutional restrictions on his actions short of war. Congress retains its funding authority and retains certain oversight of the executive branch agencies, but it appears that the Congress is not empowered to directly order the President to act or not to act in these areas.

          There is also the question of treaty obligation. Article VI, Section II states “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made…shall be the supreme law of the land”. The bulk of our current mission in Libya is intelligence gathering on behalf of a treaty organization (NATO) of which we are a member-state. By treaty obligation, which has the power of law under Article VI, we are supporting the NATO mission. Furthermore, intelligence gathering, in this case signals intelligence, has not previously been considered a hostile act which requires either a declaration of war or a congressional authorization. The Curtiss-Wright decision would seem to place the power to gather intelligence and the use of that intelligence in the sole hands of the executive branch.

           There is some question as to whether the War Powers Act itself in constitutionally sound. The War Powers Act gives Congress a legislative veto over the President’s deployment of United States forces in certain situations. However, in Immigration and Naturalization Service v Chadha (1983) the Supreme Court struck down the legislative veto provision of the Immigration and Nationality Act. The court found that the ability of Congress to veto a constitutionally allowable act of the executive branch to be a violation of the Presentment Clause of Article I. The presidential veto described in this section provides a protection for the executive branch from the power of the legislative branch. It also prevents the legislative branch from aggrandizing itself, as suggested by Justice Lewis Powell in a concurring opinion.

           If the legislative veto is a constitutionally offensive violation of the separation of powers principle in cases of immigration where a delegation of authority has taken place, how can it not be a more serious violation where the Constitution itself has provided powers exclusively to the President?

           The mission in Libya also provides us a prime example of where our laws have not kept pace with our technology. The President contends that because he has not placed our armed forces in harm’s way in Libya, which he hasn’t since we’re using robotic aircraft, then neither the War Powers Act nor Article I’s delegated power to declare war apply.

           Congress retains its “power of the purse” as provided in Article I. If Congress disagrees with the actions of the executive, it can simply cut off funding for that action. That is a much more constitutionally sound action compared to relying only on the questionable legislative veto.

           I hope that the House of Representatives and the President take their fight to the Supreme Court in this case. We may finally get some guidance from that body on a law that has been in question since it was passed in 1973. Given Justice Scalia’s rather strict view on the separation of powers doctrine, I doubt the War Powers Act will survive.

           The Libya question is not as simple as some suggest. Issues of Constitutional Law rarely are.