I am more convinced than ever that President Obama is, indeed, highly intelligent and not an idiot.
Because any idiot could avoid accidentally triggering a Constitutional crisis over the War Powers Resolution. Only a genius could stumble into doing that.
The War Powers Resolution, for those of you who aren’t fully versed in its history, was passed by an overwhelming and bipartisan Congress in 1973. President Nixon promptly vetoed it, saying it infringed on the president’s Constitutional prerogatives as Commander In Chief. Congress promptly overrode the veto, making it the law of the land.
The law sets up a calendar for presidents to follow when they send the military into action. They must notify the Congressional leadership that he’s started military action within 48 hours of doing so. He also has to get Congressional approval within 60 days of the start, or end it within 90 days.
Since then, every single president up through President Obama has played his role in the kabuki dance our politics demands. Each has complied with the Act without explicitly acknowledging its legality. They’ve discovered the magical words to use when complying with the act: they submit their reports saying they are “consistent with” the Resolution, without saying they are “pursuant to” it. This is kind of like the child telling the parent “I’m doing what you tell me to do, but not because I have to, but because I want to!” It’s going along with orders without acknowledging the authority of the person issuing the orders.
It’s made things easier all around, but it’s left the fundamental question of the constitutionality of the War Powers Act unchallenged — and that’s a festering sore. It’s a tremendously challenging question, and — to be blunt — one I am really undecided about. I don’t have a solid position on the constitutionality of the Resolution, and have for some time wanted to see a president openly challenge it, just to settle the matter.
Which is what President Obama had the opportunity to do so, over his little UnWar in Libya. Instead, he just blew the whole question off.
Let me paraphrase the discussion that apparently happened between the White House and Congress.
White House: “We need to start bombing Libya. I talked with our allies and the UN, and they all agree we gotta help the rebels and get rid of K-Daffy.”
Congress: “You talked to all those folks, and then decided? Did it ever occur to you that you might want to talk to us, the elected representatives of the American people, or the American people themselves?”
“Not really. Anyway, bombs away!”
“OK, fine, Mr. President. Go drop your bombs. Just don’t forget you’ve got 60 days to have your fun, then you have to come back and ask our permission to continue your war.’
“No, I don’t. Because it’s not a war. It’s a ‘kinetic military action.'”
“‘Kinetic military action?’ What the hell does that mean?”
“It means that it’s not a war, so I don’t have to listen to you.”
“What the hell does that mean, it’s not a war? You’re firing missiles and dropping bombs on another sovereign nation, killing their citizens, blowing up their military hardware and destroying their presidential palace. How is that not a war?”
“We don’t have boots on the ground, so it’s not a war.”
“Did you forget that jet that crashed in Libya, and the helicopter that went in to rescue the pilot? Were they wearing Combat Crocs on their feet?”
“That doesn’t count. It’s not a war because I say so.”
“Sorry, that don’t wash, Mr. President. We have the law on our side, and we’re gonna force you to comply with it.”
“Look, John. Can’t we settle this on the golf course? 18 holes, winner take all?”
OK, that’s a little exaggerated, but not much. The fact is, Obama had the choice of complying with the War Powers Resolution, like each of his predecessors over the last nigh-40 years, or putting up a principled challenge to it and settling the matter once and for all. Instead, he took the third option — just ignore it, pretend it doesn’t exist, and peremptorily announce that it doesn’t apply here simply because he says it doesn’t.
For nigh on 40 years, neither Congress nor any president has felt like putting the Resolution to the test. They all tacitly agreed to kick the issue down the road. Presidents refused to accept it, but went along with it just to avoid a fight. And Congress let them have their assertions of independence, because in the end they got what they wanted.
Until now. Now President Obama is forcing Congress to push the issue, by asserting that he — and he alone — can define just when a law applies to him and when it doesn’t.
Back during the days when the War Powers Resolution was passed, President Nixon made a statement that has outlived him, and will long stick in the public memory: “It’s not illegal when the president does it.”
In many contexts, it’s irrefutably true. The first example I can think of is in releasing classified or secret information — the president is the ultimate decider on such matters.
What President Obama seems to be asserting is that that principle holds true in every case — the president can avoid breaking the law simply by declaring that he isn’t doing it.
I have to say “seems to be saying” because he simply isn’t making any clear statements on the matter. He simply wants to keep on bombing and insisting that it doesn’t count as a “war-war.”
As I said at the outset — any ordinary idiot could have avoided today’s Constitutional showdown over the War Powers Act. This whole situation proves that whatever President Obama is, he’s no ordinary idiot.