There seems to be a lot of shock and hand-wringing going on about the revelation that, apparently, the President heard but overruled the advice of the Office of Legal Counsel concerning applicability of the War Powers Resolution to the ongoing military adventure in Libya. Instead, the statement made to Congress contained an astonishingly thin gloss over the situation which does not withstand more than cursory consideration. The result is that the President appears to have willfully broken the law, a law which as a Senator and as a candidate for the Presidency he defended as Constitutional, without even overtly changing his mind on that point.
I can add this bit of perspective from my own life and my own practice. I’ve dispensed advice to my clients in the past along the lines of “If you do action X, you will be acting in violation of law and you will be at risk of sustaining consequence Y.” My clients then turned around and did X anyway, after receiving that advice.
This sort of story shocks a number of my friends employed in non-professional kinds of jobs. “Why would anyone act contrary to their lawyers’ advice?” they ask. Those among the Readership who have dispensed professional advice, however, will find this sort of story almost blasé.
You see, sometimes, my clients made a calculation that the benefits of X exceeded the cost of Y. They rationally and economically calculated that despite penalty Y, they would realize a net gain of benefit from action X.
In other cases, it was because the calculation was that the benefits of X exceeded the cost of Y multiplied by their assessment of the probability of Y occurring. This is similar to, but not exactly the same as, “the chances of getting caught”. The difference is that “getting caught” is only part of this equation, there is also the probability of “someone caring enough to do anything about it” and, sadly for me, there is the clients’ occasional belief that my job is to help them conceal evidence that X actually took place or otherwise create doubt about X or in the alternative, to ameliorate Y(potential) such that Y(actual) becomes ½Y(potential) or ¼Y(potential) or whatever mitigation I can achieve, such that benefit of X – cost of Y(actual) is a net positive.
And in some cases it was because they worked themselves up into a moral and emotional froth about the outrageousness of the fact that the law forbade action X in the first place, blinding them to the reality that whether rightly or wrongly, the rule was ~X. In some cases, perhaps they fancied that they could prove that the ~X rule could be proven unjust and the law changed; up to and including a declaration of a court that rule ~X is unconstitutional.
In this case, we can rule out option 2. The President could not reasonably have thought that his decision to not comply with the War Powers Resolution would go unnoticed or that there would be no legal pushback. The Speaker of the House made that abundantly clear.
And we can rule out option 3, because the President has not indicated that he considers the War Powers Resolution to be unconstitutional or even inappropriate in other kinds of circumstances. And this President does not seem like the sort of guy who would ever get worked up into an irrational emotional froth in the first place.
So that leaves us with option 1. The benefit of X — continuing the war in Libya — exceeds penalty Y — defiance of the War Powers Resolution. And this is, although parsed in non-quantifiable terms, still a relatively simple economic calculus. Continuing the war in Libya maintains the position of the United States as the robustly powerful leader of military activity across the globe, up to and including leading and occasionally scolding our industrialized European allies because they still leave all the heavy lifting to us. It potentially means dislodging Gaddafi from power in Libya and it means foregoing the consequences of ~X. In this case, ~X includes the consequence of demonstrating that the U.S. is a feckless military ally, telling the soldiers, sailors, and pilots of the military that they won’t be able to complete their missions because the politicians in D.C. can’t get their acts together, and it just plain makes the President look bad politically.
By contrast, what is penalty Y? In theory, Congress can withhold funding for further military activity in Libya. Not bloody likely to happen, because no one really wants America to pay the diplomatic, military, and morale-depressing price for withdrawing from an ongoing but incomplete military activity. Penalty Y also includes the President being called “lawless” by his political adversaries. So long as the President can offer even a tissue of a claim that his action was lawful, those who want to support him for other reasons will use that tissue as an excuse to disregard the accusation of lawlessness, and those for whom the accusation sticks, well, they probably weren’t going to vote for him anyway.
In other words, the benefit of X exceeds the cost of Y. Therefore, X is the rational choice. So the President ignores and overrules what his lawyers told him, and he goes ahead and does what he prefers to do anyway, which in this case means “more war.”
This is what I mean when I say that it makes sense to set aside the personalities of the officeholders involved. Barack Obama as a lawyer, as a Senator, and as a candidate would have objected strenuously to what Barack Obama as President is doing. John Boehner in the past has argued that the War Powers Resolution is an unconstitutional intrusion on the President’s inherent powers as commander-in-chief of the military. But as Speaker of the House, Boehner find the War Powers Resolution convenient and useful to attack Barack Obama politically, and so he invokes it without a blush. It isn’t so mch Boehner versus Obama; it’s the Speaker, and by extension, all of Congress, versus the President. There are shades of Team Red versus Team Blue but the conflict, on a principled level, is institutional rather than political.
And the President has thrown down the glove, exactly as everyone expected him to do. “So you say I broke the War Powers Resolution. What are you going to do about it, bitches?” That’s the interesting question that this has finally come to. I suppose we’ll find out Monday if the answer is “We’re going to file a lawsuit that is certain to be summarily dismissed, and then we’re going to point and call you very bad names!” or if there will be any teeth to the Congressional response.
Yes, I’d say this is about it.
I think there’s a second-level analysis possible about why the Congress really won’t do much of anything beyond some name-calling that relies on similar issues of benefits and costs.
Hello Plinko. Before it was “Potted Plant” wasn’t the saying, “turnip truck”.
As in, I’m not just a “potted plant.” And, I didn’t just fall off the “turnip truck”. Obviously both have similar meanings.
For some reason the word, “normative” makes me want to pull my hair out. I have NO reason why that is–where can I go to have this word made illegal, punishable by death?
Normative could be the ugliest word in the history of the English language! HELP!!
Those phrases have different meanings, at least to my ear:
“I’m not a potted plant” means that I have something to do other than just sitting around and looking inoffensive.
“I didn’t just fall off the turnip truck” means I am not naive.
On the other hand, you could say that the cost of not doing X is Z, which is greater than the possible consequence Y.
For example, the US ignoring a direct request from NATO to act in support of a NATO activity could have some pretty severe repercussions. (But then plenty of people, including most of the DoD, think that we don’t really need to be part of NATO anyway…)
Fantastic post, Burt. You should FP it.
Most certainly, Burt!
Wasn’t “Burt” the name of that taxi driver in “It’s A Wonderful Life”?
The only thing worse than ignoring attorney advice is taking it. I’ve been at the edge of ruin twice for just that reason. Yes, yes, yes. not always but just be very aware. Very, very aware. Self-interest goes both ways.
Burt:
The difference here is that Barry went to law school and taught con law and is therefore more sophisticated than the average potted plant.
A few comments:
Burt: “…Continuing the war in Libya maintains the position of the United States as the robustly powerful leader of military activity across the globe, …” I disagree – it makes the US look weak.
“…, telling the soldiers, sailors, and pilots of the military that they won’t be able to complete their missions because the politicians in D.C. can’t get their acts together, and it just plain makes the President look bad politically.”
One can tell people that, of course. However, it’s not ‘politicians in D.C. can’t get their acts together’, rather it’s ‘The president decided to go to war, and thought that it’d be quick and easy, and others don’t feel themselves to be foolishly bound by a decision that it wasn’t constitutionally his to make’. [Note: I really doubt that Congress will end up doing squat, because they don’t really mind the President, in the abstract, acting as an Imperial War Leader. They like it.]
To a serving member of the military, “The president decided to go to war, and thought that it’d be quick and easy, and others don’t feel themselves to be foolishly bound by a decision that it wasn’t constitutionally his to make” is going to sound a whole lot like a longer and more confusing way of saying “The politicans in D.C. cant’ get their acts together” because I rather doubt that most of them delve deeply enough into the constitutional and legal hair-splitting which us Leagesters find so enjoyable.
The point is that there is a very specific politician who decided to go off on his own, for no good reason. And, of course, one of the factors was undoubtedly ‘what is Congress gonna do, after the fighting has started?’.
Density Duck: “For example, the US ignoring a direct request from NATO to act in support of a NATO activity could have some pretty severe repercussions. (But then plenty of people, including most of the DoD, think that we don’t really need to be part of NATO anyway…)”
The NATO treaty isn’t a blank check for any request, last I heard. It’s supposed to be defensive in nature. Gaddafi did not attack any member of NATO. This was an attempt to overthrow a nasty guy when it looked like he was off-balance on the edge of the cliff. And it’s not for humanitarian reasons, as the recent slaughters in Bahrain clearly show.
Strictly speaking, I’m not sure the War Powers Resolution has anything whatever to do with Congress’ power via control of the pursestrings to end whatever wars they choos (barring highly illegal subsequent presidential funding shenanigans a-la Iran-Contra). So, if I am not mistaken, if the president took military action under the War Powers Resolution and informed Congress of it, nothing about that would barr Congress, were it sufficiently and immediately outraged enough about the president starting such a war, from immediately talking all the steps they could identify to immediately withhold means to allow the president to continue to prosecute said war. I don’t think anything in the WPR has denied Congress that theoretical power. Similarly, I don;t believe that, were the Congress to approve continuing a WPR-pursuant presidential military action, that Congress would then be barred, if there were a sudden change in the political attitude relating to the war, from subsequently using its appropriations powers to force the president to discontinue, or otherwise limit, the war effort in question. The power of the purse is simply retained by the Congress regardless of the War Powers Resolution. I suppose Congress could say that a president’s not complying with the WPR is a reason for their choosing to use the power in a given instance, but that doesn’t make that action by Congress a legal consequence of the president’s failure; rather, it is simply what it will always be: a political consequence of a president’s having gotten on the wrong side of Congress with regard to a war.
I’ve been puzzling through what would be a natural legal consequence of a president’s sustained non-compliance with the WPR. Certainly a court could find the president in violation, and order him to stop engaging in hostilities, what have you, etc. But, as we’ve discussed here, no court, or only the rare one, and then even rarer as one goes up the appellate chain, is likely to make such a finding. It’s a political question, if anyone even has standing. Then it hit me: the natural legal consequence of violation of the WPR is obvious: it’s impeachment. Yes, impeachment is a political procedure, but it is also most definitely a legal one, and its political an legal dimensions perfectly reflect the political and legal dimension of the imperative involved in the WPR and its enforcement. The WPR is a law written specifically to encode what one branch sees as its rightful political role in national warmaking decisions. Impeachment is a legal procedure designed to address lawbreaking by the Executive, especially in cases in which the Executive has that threaten to upset the political balance between the branches due to lawbreaking that is the result of presidential overreach or abuse of power. Impeachment is a realistic remedy to presidential lawbreaking only when the political conditions are right for it to proceed. The WPR, or indeed any Congressional effort to reign in presidential warmaking overreach (be their lights), will only be an effective check on such overreach when the Congress has the political will to back up its injunctions with real resistance. This seems like a match made in heaven.
Whether Congress sees fit even to nod toward these bottom-line powers that it retains to, in the first instance, control presidential warmaking via the pursestrings, War Powers Resolution aside, or, given the reality of the WPR being on the books and a widespread view (perhaps?) in Congress that the president is flagrantly in violation of same, impeachment, will tell us a lot about whether this Congress is serious about preventing this president from continuing this war, or whether they were just interested in landing a few good legalistic-sounding political jabs on the president before calling it a day and retiring to quarters for bourbon and smokes.
Catching up a bit today, finally read this and really got a great laugh:
> And the President has thrown down the glove, exactly
> as everyone expected him to do. “So you say I broke
> the War Powers Resolution. What are you going to do
> about it, bitches?”
Brilliantly done, sir. Hat tip to you.
And the murmurred, hesitant answer from Congress, staring sullenly at its shoes, is “…nuthin’.”