Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to email@example.com; please put "blog comments" in the subject line.
[Foreign intervention on various levels, including constitutionally, does lead to strange bedfellows. My take in response of Jack Goldsmith (the "reasonable conservative" who is still one, thus his opposing the Bush Administration underlines how far they went) over at Slate and other places. The version in the Slate fray was added to somewhat for this version. The title is reaffirmed in this article.]
It is appreciated that a leading figure from the Bush Administration accepts that originalism alone does not provide a simple answer here, a principle that one hopes he applies in other contexts:
There are many more theories about the original understanding. Even if we could definitively resolve this debate, which we can't, it is unclear why original intent—which in practice rarely determines contemporary constitutional meaning—should control outcomes in the context of presidential war powers, a context that as much as any is marked by radically changed circumstances.
Many things are "marked by radically changed circumstances," but interestingly many who tie themselves to some form of original understanding (there are so many to pick from) and limited government wish to make an exception for executive authority in this field. As with the desire to avoid judicial review in such areas (repeatedly rejected, if not enough -- thus people's life, liberty and property are put in harm's way and it all is deemed a political question between the President and Congress, neither much directly affected in a concrete sense as compared to those denied standing in court), that seems a tad bit arbitrary. If defended to some degree.
The article is almost amusing in having a feel that your stereotypical living constitutionalists would appreciate. Since I don't feel like a stereotype, I'm not really totally comfortable with it. We are told (somewhat confusingly) that "constitutional meaning gets liquidated by constitutional practice." The quote from a Supreme Court opinion only says that long practice provides a "presumption" of constitutionality. For instance, the long practice was for the federal courts to accept that states had the power to ban firearms if they had a reasonable public interest to do so. This "presumption" was deemed illegitimate in 2008. Again, when it comes to certain matters, rules can be unequally applied. See also, December 2000. OTOH, accepted practice in this area would make impeachment dubious, since that is a matter of prosecutorial discretion that warrants fair warning. If Congress suddenly shifts gears to that degree, it would be improper.
It is noted that Sen. Obama and Clinton opposed "unilateral" action that seems to be equivalent to what is occurring here. I'm not sure. The link itself suggests a possible out. Does UN action of the sort here count as "unilateral" or does the reference to bombing Iran apply also to active threats akin to let's say Rwanda (when useful, the Iraqi people were cited as a reason for the 2003 invasion, but unlike in 1991, when such "humanitarian action" was avoided, there was not a live ongoing special act of human rights threat in place)? Does modern international law provide membership nations to work with others to deal with imminent human right threats as decided by lawful actions of the U.N. (not present in 2003; Kosovo is a hazy line, since NATO agreed and they are the regional force)? Though it's tempting, I'm going to say Obama changing his mind here though once you are in power, you can change your mind given new responsibilities.
There is also a pragmatic argument for congressional involvement, that too a type of "constitutional law" as would be the case when determining, even if court enforcement is not appropriate, the rules of the game for judicial nominations (information provided, senator involvement etc.). Sen. Lugar:
“But given the costs of a no-fly zone, the risks that our involvement would escalate, the uncertain reception in the Arab street of any American intervention in an Arab country, the potential for civilian deaths, the unpredictability of the endgame in a civil war, the strains on our military, and other factors, I am doubtful that U.S. interests would be served by imposing a no-fly zone over Libya.” ...
In this broad context, if the Obama administration decides to impose a no-fly zone or take other significant military action in Libya, I believe it should first seek a Congressional debate on a declaration of war under Article I, Section 8 of the Constitution,” Lugar said.
This is better than counting every two bit military excursion, ridiculed long ago, as if they are the same thing as what is going on now. So, is the campaign constitutional? Some use of military personnel overseas without new congressional involvement is legitimate. If the U.S. (including citizens abroad or our military) is attacked, for instance, so citing various past uses of force only takes you so far. Some of them most likely were illegitimate. State authorized racial discrimination was long in place, but that didn't make it acceptable. The same applies to many executive actions in the military context. Torture is illegal even if it has been going on for years. And, as in 2001/02, congressional authorization of force has been used, so some precedent is there.
A citation is made to a Supreme Court ruling that held that the President "has no power to initiate or declare a war either against a foreign nation or a domestic State," but the article notes that there is a debate over what "war" means. The term has an international law meaning; does it include actions of the sort in place here? As a matter of international law, I think the invasion is legal pursuant to U.N. authority. As in various areas, the selective use of power leaves something to be desired, but the limitations of reality tends to work that way. This includes dealing with tyrants who have some sort of restraint and/or can't be restrained more given nuclear weapons or whatnot. The question here is domestic. Signing a treaty, ratified by only 1/2 of the Congress (Senate), does not override domestic law. We cannot sign a treaty that abridges the freedom of speech and censor anti-Muslim speech.
Congress is given multiple powers that are in place to "chain the dog of war." It is near sophistry to avoid calling bombing countries, setting up blockades ("no fly zones" included) and supporting rebel forces by some other name. The spirit of the text matters here too. Unilateral action (or even vague delegation ala the 2002 AUMF giving the ultimate choice to invade Iraq to Bush) is not authorized. As with discrimination and other wrongs, Congress knowing and enabling violations does not make them appropriate. Do Tea Party types and others want "a world government" to set the rules of when our military goes into harm's way? [Apparently, as long as we continue to have a major role in it; as with "federalism," practice is more nuanced than rhetoric.] And, no standing in court mind you, since "you" aren't hurt, only Congress, who is not willing to push the matter, it being inconvenient.*
We can debate the shades of wrong here,** but in the modern state, Congress has the ability to be involved immediately and should be. This isn't the case of naval conflicts in the time of Napoleon, so references to the past are of only limited value. But, the current might of the U.S. military and the dangers of unilateral action if anything make it more dangerous. The "executive" should "execute," including when "commander-in-chief." Congress having the power and responsibility, they are the true villains here. Members get to pontificate while someone else gets to make policy decisions. Congress has an obligation, pragmatically and constitutionally, to do more.
Congress should immediately pass a resolution on the ongoing matter and set some guidelines for the President to follow. The guidelines should not be as vague or open-ended as the AUMF, which "authorizes" apparently a roving battle plan involving any number of nations. Imperfect as that might be, it would do something appropriate to its constitutional obligations.
* Talking Points Memo, e.g., notes the Republicans are split on Libya. Some oppose such a foreign intervention under these terms (and under this President), others support it. Thus, it's convenient not to have to vote on such matters, except for fait accompli funding matters, once we are already there and all.
** A standard argument is to determine if Obama is "worse than Bush" on this issue, an act of tedium given that the final settlement is a complex matter that is repeatedly not addressed that way. See, e.g., here regarding the "new normal" [including the law article cited], which Bush helped to create/broaden and which involves various nuances that matter given the breadth of the power involved.
But, on some level we can't avoid this sort of simplification. Thus, an invasion authorized by the U.N. / truly a multilateral effort and in some fashion supported by regional powers is deemed a "U.S." one. As with everything else, we have to take that as a given when deciding what to do.