Topics: Barack Obama

Day 3: Obama ignored Congress before launching Libyan war

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White House,Congress,Conn Carroll,Barack Obama,Analysis,Constitutionality,Accountability,Libya,Executive Power Series

Part three of the Washington Examiner's 10-part series "With the Stroke of a Pen: How Obama abuses executive power to make the law of the land."

President Obama made it clear in a Mar. 3, 2011, statement from the White House: "The violence must stop. Muammar Gaddafi has lost legitimacy to lead, and he must leave."

The Arab Spring had come to Libya, generating calls for U.S. and Western assistance to the gathering rebel forces threatening Gaddafi, the North African nation’s long-time dictator and U.S. nemesis, with overthrow.

"I don't want us hamstrung," Obama continued. "I want us to be making our decisions based on what's going to be best for the Libyan people in consultation with the international community."

And consult the international community Obama did. On Mar. 12, Obama won approval from the Arab League to impose a no-fly zone on Libya. On Mar. 17, the United Nations approved the use of force as well.

On Mar. 19, U.S. and British ships instituted a naval blockade of Libya, while the U.S., French, British and Canadian air forces began a bombing campaign that lasted seven months, one week and five days.

About this series

On Nov. 16, 2010, just days after voters gave Republicans control of the House of Representatives, the progressive think tank Center for American Progress published a report titled "The Power of the President."

Obama-Biden Transition Project Chairman John Podesta introduced the report, writing that "in the aftermath of this month's midterm congressional elections, pundits and politicians across the ideological spectrum are focusing on how difficult it will be for President Barack Obama to advance his policy priorities through Congress."

"Some debate whether the administration should tack to the center and compromise with the new House leadership," Podesta continued.

"As a former White House chief of staff, I believe those to be the wrong preoccupations. President Obama's ability to govern the country as chief executive presents an opportunity to demonstrate strength, resolve, and a capacity to get things done," Podesta said.

Not only did Obama almost immediately embrace the report's call for maximizing executive power to achieve progressive ends without Congress, it even branded the effort "We Can't Wait," thus advertising the fact that Obama had abandoned all pretense of following the U.S. Constitution's carefully drawn separation-of-powers doctrine.

In this Washington Examiner series, Senior Writer Conn Carroll documents the many times Obama has flagrantly abused executive authority to advance his liberal agenda without congressional approval.

The top 10 instances will be examined over the next two weeks, and more will come later.

Stories in this series

1. Immigration amnesty by executive memo

2. The employer mandate delay

3. War in Libya

4. The illegal Solyndra contract modification

5. Rewriting federal education law by waiver

6. Unconstitutional NLRB appointees

7. The Yucca Mountain delay

8. Gutting welfare reform

9. The Gulf of Mexico drilling moratorium

10. Regulating the Internet

Over that time, the U.S.-led forces decimated Libyan military and civilian infrastructure, killing countless Libyan military personnel, and, according to the United Nations Human Rights Council, at least 60 civilians as well.

But at no point during this prolonged use of military force, did Obama ever seek approval from Congress. That's unconstitutional. Article I of the United States Constitution unequivocally grants Congress, not the president, the power “to declare war.”

This does not mean that Congress must officially declare war every time the president uses military force. Congress has declared war only five times in the history of the country. But it does mean that the president must seek approval from Congress for the use of force at the earliest possible date.

This is what President George W. Bush did when he secured an “Authorization for the Use of Force” before he invaded Iraq in 2003.

Article II of the U.S. Constitution identifies the president as “the commander-in-chief of the Army and Navy of the United States.” This, the Supreme Court has held, empowers the president to use military force if the U.S. has been attacked or faces imminent attack.

In 1986, for example, President Reagan dropped 60 tons of bombs on Libya in response to Gaddafi's sponsoring of a terrorist attack on U.S. soldiers in Germany.

And in 1998, President Clinton used cruise missiles to destroy terrorist bases in Afghanistan and a pharmaceutical factory in Sudan in response to al Qaeda attacks on U.S. embassies in Kenya and Tanzania.

But both of those military actions lasted less than a day and were in response to a direct attack on diplomatic facilities that are recognized by the U.N. as sovereign U.S. territory.

By contrast, Libya had not attacked America in more than 20 years, there was no evidence it was about to, either, and Obama’s military campaign against Gaddafi lasted more than half a year.

There is no case law defining where the line between a small-scale military action like Reagan’s Libya bombing ends, and where the line for a full-scale “war” begins. But surely a president asking the United Nations for approval of an operation involving naval and air forces for many months has clearly crossed that line.

Unfortunately it is virtually impossible for any American to hold Obama accountable for the extended use of military force without permission from Congress.

No single person would have standing to challenge a president’s orders, and even if they did, a federal court would probably view it as a political question and defer to Congress.

The only way the nation has of holding a president accountable for his use of the military is for Congress to insist on being included in the decision-making process.

But that would require Congress to use one of its multiple constitutional tools such as defunding specific programs to force the president to comply with the Constitution.

Conn Carroll is a senior editorial writer for the Washington Examiner.

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