The House’s too belated and possibly fraudulent effort to rein in Obama on Libya

Today’s New York Times makes Boehner’s Libya resolution sound much weaker than was reported by Jake Tapper yesterday at ABC. Tapper said the resolution would (ultimately) cut off funding for the Libya action. The Times says:

Mr. Boehner’s resolution notes that Mr. Obama has not obtained Congressional authorization for the air offensive in Libya. It demands that the administration provide, within 14 days, detailed information about the nature, cost and objectives of the American contribution to the NATO operation, as well as an explanation for why the White House did not come to Congress for permission.

This is unreal. Under the War Powers Act, the president must get authorization for a military action within 60 days, and if he doesn’t get it by that date, he must cease the action within the next 30 days. The 60 day limit passed on May 20. That was two weeks ago. And only NOW the House is considering a bill that will do … what? Well, it will “demand” (with no actual power to compel, because this is only a resolution, not a law) that the president provide, within two weeks, information about the Libya action. But we are already just two weeks away from the date at which the action must cease. So on the day the action must cease, Congress is going to receive (if the president condescends to provide it) … information about the action? It sounds as if the House leadership is setting up a scenario by which they feint with the White House for a while, go through the motions of obeying the law, and then allow the Libya policy to continue.

Let’s hope I’m wrong. Let’s hope that the House, although disgracefully lax in its constitutional duties up to this point, will eventually end funding for the Libyan intervention. That would appear to be the only way of stopping it. But again, such a cutting of funds should not be necessary. The War Powers law says that the action must stop in another two weeks. There’s nothing further that the Congress should need to do. But what if the president doesn’t obey the law and stop the military action? Then the Congress should call on the Supreme Court to order him to stop it, and if he still resists, the only remaining option is impeachment. I realize that’s not going to happen, but under our system it is the only way to bring a lawless president to heel.

I say this because it seems questionable whether cutting the funding can actually stop the intervention. Funds that go to the military are fungible, are they not? So Congress can say it’s cutting the funding for the attacks on Libya, but the commander in chief can simply order the military to use other funds for the same purpose.

From the start, Boehner and Cantor demonstrated by their passivity and detachment that they had no real problem with either the intervention or its lack of legality. They are as much a part of this problem as Obama.

In connection with which, note how the various pro-intervention congressmen quoted in the Times avoid the question of legality and speak of their belief that we must continue the Libyan intervention. As though the only issue were whether the intervention is a good idea, not whether the president has the constitutional authority to perform it. Also note how the Times, with its dainty, fastidious style, makes it sound faintly odd that anyone should be concerned about whether the president has the constitutional power to do what he’s doing in Libya.

Update: I should have added that there is another measure the House could take to resolve the constitutional crisis. It could pass, along with the Senate, a resolution approving the president’s use of force against Libya. But the House leadership hasn’t made such a move, because there is not sufficient support for it. To the contrary, the leadership was afraid that a coalition of Republicans and leftist Democrats would pass the more radical Kucinich anti-war resolution requiring the hostilities to cease immediately.

Here are earlier VFR posts on the congressional authorization issue. Here is the Times article:

House Sets Votes on Two Resolutions Critical of U.S. Role in Libyan Conflict
By JENNIFER STEINHAUER and CHARLIE SAVAGE

WASHINGTON—The House will vote Friday on two measures that are strongly critical of President Obama’s decision to maintain an American role in NATO operations in Libya, reflecting increasing disenchantment among elements of both parties about the United States’ involvement in the conflict.

The decision to put the resolutions to a vote came after Republican leaders earlier this week postponed consideration of one of them, which would direct the president to end American’s military involvement in the operations. It was sponsored by Representative Dennis J. Kucinich, the Ohio Democrat who is one of the most liberal members of the House.

The leadership feared that the Kucinich measure would pass with backing from an unlikely coalition of liberals and conservatives, a step they contended would send the wrong message to allies engaged in other conflicts with the United States.

On Thursday, Speaker John A. Boehner took the unusual step of presenting his own resolution to his caucus to be voted on by the full House on Friday, along with the Kucinich measure.

If either or both were to pass, it would represent the most assertive stance by Congress to date on the Libya conflict and highlight the chronic tensions between the executive and legislative branches over the president’s ability to wage war without Congress’s express approval.

The United States is currently providing NATO with intelligence, logistical support and armed drones in what is largely a bombing campaign against Libyan government forces.

Defense Secretary Robert M. Gates was in Singapore on Thursday, where the Pentagon press secretary, Geoff Morrell, expressed concerns over the prospect of Congress voting against American support for the operations in Libya.

“It sends an unhelpful message of disunity and uncertainty to our troops, our allies and, most importantly, the Qaddafi regime,” Mr. Morrell said. He also warned that the Kucinich measure could harm American relations with NATO allies contributing troops to Afghanistan.

Mr. Boehner’s resolution notes that Mr. Obama has not obtained Congressional authorization for the air offensive in Libya. It demands that the administration provide, within 14 days, detailed information about the nature, cost and objectives of the American contribution to the NATO operation, as well as an explanation for why the White House did not come to Congress for permission.

Last month, Mr. Obama sent a letter to Congress emphasizing that the United States had turned control of the operation over to NATO and that it was primarily providing support to allies. The letter also said the administration supported the idea of lawmakers expressing their support for the operation, but it did not concede that such authorization was legally necessary.

Early in the conflict, the administration said it was within Mr. Obama’s power to initiate American participation in the hostilities without Congress because the combat was of limited scope and duration.

But the War Powers Resolution says that presidents must terminate hostilities after 60 days if they have not been authorized by Congress. That deadline passed on May 20, and the administration has not explained why it thinks it was lawful for the operation to continue.

Congressional opposition to American involvement in Libya sits at center of several otherwise unconnected points of view: the antiwar leanings of the left, the strong dislike of the president by many Republicans, fiscal concerns among Tea Party-backed lawmakers who are increasingly worried about the costs of military conflicts, and a broad feeling on Capitol Hill that the powers of Congress were usurped by the president’s decision not to seek explicit authorization to continue American involvement.

Last week, the House approved an amendment to a military authorization bill that would prevent the deployment of American ground troops to Libya.

“There is a question of how far we stretch our troops,” said Representative Tim Scott of South Carolina, a freshman Republican. “Also, what is the reason that we are there? I don’t think the answer to either of those questions is clear here.”

Mr. Kucinich’s resolution, citing the War Powers Resolution, directs the president to remove American armed forces from Libya 15 days after the date of adoption. It could conceivably find more support among Republicans than Democrats, some of whom will find themselves squeamish about rebuking a Democratic president. But the Republican leadership opposes the Kucinich measure.

It “would undermine our troops in harm’s way and undercut our allies who have stood by us in Afghanistan and other areas abroad,” Mr. Boehner said in a statement. “Regardless of how we got here, we cannot suddenly turn our backs on our troops and our NATO partners who have stuck by us for the last 10 years.”

The Democratic leadership suggested that it would not back either resolution. “The resolutions by Speaker Boehner and Congressman Kucinich, as currently drafted, do not advance our efforts in the region and send the wrong message to our NATO partners,” said Representative Nancy Pelosi in a statement.

Several Republicans leaving a meeting with Mr. Boehner Thursday said that they would have to consider both measures.

“As a 22-year combat veteran, I would be happy to stand beside Dennis Kucinich on this,” said Representative Allen B. West of Florida, a Republican freshman.

In that, Mr. West joins an unlikely alliance with Representative Jerrold Nadler, Democrat of New York. “The president had no authority to go into Libya,” Mr. Nadler said. “There was no threat to the United States, and I think the action was illegal and wrong as a matter of constitutional law.”

Mr. Boehner’s measure is an appealing alternative to some members. “I think the president, if he’d come here to make the case, probably would have had widespread support,” said Representative Adam Kinzinger, Republican of Illinois. However, Mr. Kinzinger said he did not support removing American forces from the operation in Libya and supported the overall mission as vital to American interests.

Even if passed by the House and the Senate, it is unclear how much impact either measure would have. A 1983 Supreme Court ruling raised doubts about the constitutionality of any attempt by Congress to direct the executive branch to do something using a resolution that the president has no chance to veto.

However, such a resolution could increase political pressure on the White House and set the stage for a later effort to cut off funds for further operations in Libya in a budget bill.

Posted by Lawrence Auster at June 03, 2011 04:45 PM | Send