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View Diary: Why Pres. Obama Seeks Approval for Syria Action (43 comments)

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  •  One item on the bill of impeachment (3+ / 0-)
    Recommended by:
    lcrp, wu ming, lysias

    against Nixon was contempt of congress. They had passed restrictions on taking the war into Cambodia and he did anyway in secret.

    The whole war powers act is murky. The president probably does have some limited authority to take limited military action for a limited time period without prior approval from congress. Some have done that and gotten by with it.

    Kerry is claiming that if congress fails to pass an AUMF resolution, Obama still has the authority to act. If he did that I think he would be moving onto shaky ground.

    •  Within the WPR itself, Congress laid that out. (2+ / 0-)
      Recommended by:
      i dunno, lysias

      They listed three situations where the President's authority to wage war can exist:

      The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to

      (1) a declaration of war,
      (2) specific statutory authorization, or
      (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

      Point 3 is generally read to allow for true preemptive strikes (i.e. the enemy's bomber is heading for us, he can order it shot down), but otherwise that seems like the proper constitutional balance to me.

      I think the real issue is that enforcement always depends on Congress, and there are many instances where Congress would rather retroactively authorize the action or turn an institutional blind eye to it than to assert their primacy.

      "Speaking for myself only" - Armando

      by JR on Sat Sep 07, 2013 at 05:56:01 PM PDT

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      •  It basically comes down to politics. (3+ / 0-)
        Recommended by:
        lysias, JR, dallasdunlap

        The law has never gone to the federal courts. If congress believes that the president has seriously exceeded his constitutional authority, their most direct option is impeachment. They don't need the approval of the courts for that.

        •  Absolutely correct (0+ / 0-)

          It's a non-justiciable political question, and the contours of the President's authority are defined by Congress (which, for various reasons, prefers not to act). It's a balance they haven't really checked since the House censured Polk in 1848.

          "Speaking for myself only" - Armando

          by JR on Sat Sep 07, 2013 at 07:25:02 PM PDT

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      •  yeah, but congress can't circumscribe (0+ / 0-)

        the president's constitutional powers (ya can't change the.constitution through statute.)

        and courts won't rule on this, so its really up to the political battles between the president and the congress.

        •  It's Congress that has the constitutional power (2+ / 0-)
          Recommended by:
          JR, Kentucky DeanDemocrat

          to declare war, not the President.  When John Ely taught me national security law at Yale Law School, it was his view that the War Powers Act is unconstitutional because it was wrong for Congress to delegate even a part of that power to the President.

          The influence of the [executive] has increased, is increasing, and ought to be diminished.

          by lysias on Sat Sep 07, 2013 at 07:01:55 PM PDT

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          •  that's one view. (0+ / 0-)

            another is that it unconstitutionally constrains the president's ability to use the military in ways that fall short of the sort of full scale conflict that would require a declaration or authorization.

            and, as I'm sure you're aware, this is all non-justiciable stuff, so the political branches have to work it out themselves without the mediation of the courts.

            •  (that digression aside, the point was that (0+ / 0-)

              congress's opinion about the scope of the president's ability to use force doesn't matter a bit.  the only thing that matters is what the constitution says / means.)

              •  Except that the Constitution gives Congress.... (1+ / 0-)
                Recommended by:
                lysias

                ...the real power to enforce their opinion through impeachment and the power of the purse. They pay the piper, they get to call the tune.

                "Speaking for myself only" - Armando

                by JR on Sat Sep 07, 2013 at 07:26:32 PM PDT

                [ Parent ]

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