Obama Kills the War Powers Act

His views on the limits of executive power didn’t survive contact with the presidency.

Rich Lowry
Tuesday, June 07, 2011

Somewhere, Richard Nixon is smiling. In 1973, he vetoed the War Powers Act, insisting that it was unconstitutional. Congress overrode him, but almost every one of Nixon’s successors has agreed with his assessment of the resolution.

It took Pres. Barack Obama, though, to rip the War Powers Act into little pieces and sprinkle it over his Libyan intervention like the confetti in a premature victory parade.

The thrust of the War Powers Act is clear enough: Sixty days after reporting the start of a military intervention, the president must secure congressional authorization or a declaration of war, or remove our forces. Presidents have typically acted “consistent with,” but not “pursuant to,” the law’s provisions — basically, humoring Congress while never conceding the law’s constitutional legitimacy.

President Obama is dispensing with all pretense. He’s simply ignoring the law. This is the kind of highhandedness that Dick Cheney was always accused of, although the Bush administration was old-fashioned enough to get prior congressional approval of its wars.

Obama launched the Libya War on his say-so, and doesn’t even want to bother to explain to Congress why the War Powers Act doesn’t apply to a conflict begun some 80 days ago. On Libya, the Obama administration is making a gigantic rude gesture to Congress and all the liberal professors and national-security experts who have made such a fetish of the War Powers Act through the years.

Before tangling with Moammar Qaddafi, Obama counted himself among their number. As a senator, he maintained, “The president does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

President Obama joins a long list of presidents going back to Thomas Jefferson whose views of the limits of executive power didn’t survive their first contact with the presidency.

President Obama isn’t doing his reputation for consistency or the legal theories of his supporters any favors, but he is paying a backhanded compliment to the Constitution. The War Powers Act is an excrescence on the American constitutional order that deserves to be the dead letter that President Obama is making it. The president’s inherent powers as commander in chief do not depend on affirmative acts of Congress.

What Congress can do is wield its own powers — most decisively, the appropriation of funds — to limit or end a military action. Of course, Congress usually refuses to do that, since it involves an action for which it could be held politically accountable. Predictably, the grand confrontation between the legislative and executive branches over Libya has been an instance of the cowardly fighting the disingenuous.

The Obama administration implausibly pretends that the president’s posture hasn’t changed on the War Powers Act. A spokesman argues that its briefings of members of Congress constitute compliance. But the resolution doesn’t call for collegial chats after 60 days. The administration’s other possible defenses — that Libya isn’t really a war, that it’s a piddling war, that we are “leading from behind” — don’t help, either. The act doesn’t make exceptions for small, euphemistic wars waged under NATO auspices by reluctant presidents.

If this were the Bush administration, Nancy Pelosi would be agitating for impeachment. Yale law professor Bruce Ackerman has written in despair that “Obama is breaking new ground, moving decisively beyond his predecessors.” At this rate, he notes, “history will say that the War Powers Act was condemned to a quiet death by a president who had solemnly pledged, on the campaign trail, to put an end to indiscriminate warmaking.”

History comes full circle. In the aftermath of Vietnam and the midst of Watergate, liberal Democrats passed the War Powers Act as part of a broad assault on presidential powers. The act reached the end of the line with a liberal Democrat in the White House, who wanted to avail himself of the full sweep of his powers. No doubt, Nixon wouldn’t just relish the result, but appreciate the irony.