Say it with me: “If Bush had done this…”

June 19, 2011

Granted it’s gotten to be a cliché, but, really, just how many times did George W. Bush set the stage for a constitutional crisis?

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.

A White House spokesman, Eric Schultz, said there had been “a full airing of views within the administration and a robust process” that led Mr. Obama to his view that the Libya campaign was not covered by a provision of the War Powers Resolution that requires presidents to halt unauthorized hostilities after 60 days.

“It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict,” Mr. Schultz said. “Those disagreements are ordinary and healthy.”

Oh, please. First off, the OLC’s opinion is considered a gold standard for determining what’s legal and what isn’t, and presidents and attorney generals have given it great deference. Even the Times article says that their opinions are rarely disregarded. And the process used in this “determination” was suspiciously hinky: typically, the OLC solicits opinions from other departments, weighs them, then gives its opinion as to a proposed action’s legality to the AG and the president.

In this case, however, The White House solicited the opinions itself, making OLC one among many. Obama then accepted the opinion that was most convenient for him. The Times tries the “Obama is a constitutional scholar and is qualified to judge for himself”  argument, but… give me a break. The man was non-tenured faculty and never authored a law-review article nor, as far as I can find, any scholarly article on constitutional questions — and particularly none on the War Powers Act. The idea that he knows the intricacies of the law in this matter, both statutory and constitutional, better than career professionals at the Department of Justice is risible.

That Obama should set aside the opinion of the OLC and the weight traditionally given to it is neither “ordinary” nor “healthy.”

What I don’t get is the “why” behind this bizarre refusal to get Congress’ acquiescence. It’s not as if they’ll say “no.” I guarantee you, the majority of representatives and senator would never, ever want to be seen denying funds to forces in the field. All Obama has to do is provide the reasons why we need to be involved in Libya, and the Congress will practically fall all over itself to give him authorization.

Maybe that’s it? Maybe he isn’t asking for it because he can’t come up with any justification for an operation that has no basis in US national interests or treaty obligations?

Or is this just more of Obama’s arrogance, the Munificent Sun King who refuses to be hobbled by a rabble?

Regardless, he’s potentially buying himself trouble here. While I believe the War Powers Act is unconstitutional, until ruled as such by the Supreme Court, it is the law of the land and Obama is required to obey it. Instead, he shoves a political grapefruit in John Boehner’s face — and that of the left wing of the Democratic Party, supposedly his base. When it comes to the point that Republicans and Democrats are proposing legislation to cut off funds unless the president explains just what-the-heck it is we’re doing there, you know he’s crossed a major line with Congress.

What can I say? He’s a uniter, not a divider.

Of course, the reaction is still relatively mild, so far. I don’t think anyone’s said the nuclear word “impeachment”… yet. But I’m sure Dennis Kucinich is warming up in the wings. And the MSM articles to date have been  relatively mild, more expressing puzzlement and offering tissue-thin explanations (like the Times piece), rather than foaming at the mouth in outrage.

I guess The One still has a reservoir of credit with them, because, had W dissed Congress like this, the press and the networks would have been screaming murder.

And, regardless of the press coverage, this is another example of the anti-democratic arrogance of this Democratic administration, which time and again has bypassed the clearly expressed will of the people’s representatives to do whatever it wants, whether through the EPA, the FCC, the NLRB, a whole raft of czars — or parsing into meaninglessness  words like “hostilities,” in the case of the War Powers Act.

2012 can’t come fast enough.

(Crossposted at  Sister Toldjah)


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