Congress Could, You Know, Do Something Itself

13 Comments

1. For the life of me I can’t understand why the Hell Obama didn’t just ask for a resolution. I don’t buy the “because it’s a power-grab” because, well, is it really so cumbersome to get a rubber-stamp? Did he think that avoiding an authorization would somehow decrease the attention paid by the public at large? Is it because he thinks it’s politically problematic to acknowledge that, yes, this is a war or pseudo-war rather than some nebulous thing that we happen to be tangentially involved with?

   • Those last two are pretty close in my judgment, Elias. I think the last thing he wanted to do was start a third war that the U.S. would be involved with past the WPR window – at the outside. And seeking Congressional approval for use of force signals an expectation of at least a relatively long, deep involvement – longer and deeper than Obama himself expected or wanted, and certainly longer than they want to increase the public’s attention to. I think Obama was persuaded by humanitarian intervention-types in his Admin that the Benghazi massacre had to be avoided and other civilian atrocities prevented, and only later saw that all those advocating that would then turn that rationale into regime ouster as the de facto war aim for the involvement. At that point, there was no one he could rely on for support of the initial goals whose support he wouldn’t lose if he didn’t go along with the more extensive objective. This holds on the international stage, where the major figures who argued for the intervention (Cameron, Sarkozy, certain Arab leaders) would view the abandonment of a regime change objective as a horrible failure to seize an important opportunity and a failure of will on the part of the U.S. All that being true, nevertheless in practical terms, full engagement in seeking Congressional authorization even now – especially now after the de facto goals of the mission have become clear – would involve extensive, high-visibility hearings seeking to clarify the mission and weigh its value to Americans (the horror!). Even if authorization were achieved, the signal would be sent and received that we are fully engaged in a third Middle Eastern campaign, just as disengaging to focus on home matters is clearly the order of the day. BY ALL MEANS, this would be the point of the exercise. But from Obama’s position, along the lines of Burt’s previous post outlining the consequential reasoning of the offender – involving discounting the threat of adverse outcomes by their likelihood – I’m pretty sure the nearly-%100 likelihood of the political consequences I describe (signalling deep involvement in a Middle East war when the public deeply wants to bring troops home etc.) outweigh the fairly low likelihood that there will be any consequences whatsoever to simply letting the WPR problem and its enforcement land in the lap of the body that put it into place.

     Indeed, given the clear political preferences of the electorate it must court for the next sixteen months, I’m not even sure that facing a determined, effective Congressional effort to end this engagement in short order is even a prospect the White House considers only part of a worst of possible worlds at this point – perhaps not even to the point of being a more fearsome prospect than deeply involving themselves in seeking the authorization you wonder about.

     • Reading this over, I see it is entirely possible I give Obama-the-human entirely too much credit for not premeditating (or at least precognizing) the regime-change end of the initial rationale for inervention — i.e that I credit him with being hopelessly naive rather than unforgivably cynical and calculating with respect to the inevitable question of Allied policy toward the regime. (In point of fat I think he thought, or was persuaded, and again here I may err to the naivete end of the speculative meter, that the regime’s fall would rather quickly, i.e. within the WPR clock’s limit, result even from a military effort limited to civilian protection [with civilians being rather broadly defined to include belligerent internal opponents of the sitting regime]). Whatever failings or blindness I exhibit in that regard, I think whatever the truth about BHO’s thinking on those questions at various moments in March and April was doesn’t much change my analysis of the (depressing) calculus that was done with respect to the costs and benefits of seeking Congressional authorization for the engagement, which I think holds up in the case of either naivete or calculating cynicism regarding eventual war aims.

   • Not to make this too political or crude (because I think Obama is wrong as well), but I bet he or more correctly, the White House senior staff realize that if Obama came out on TV tomorrow in favor of puppies and clouds, the GOP would have a web video with puppies in black ‘n’ white with their teeth bared and thunderclouds in the distance.

     So, instead, they said fuck it, and now here we be.

     • Jesse:

       For someone that claims they don’t want to be too political, you seem to be playing Elias’ tune that Barry’s decision to ignore federal law is somehow the GOP’s fault. When will Barry be judged on his own w/o reference to the GOP?

       • The exact moment Republican’s give Clinton credit for reducing the deficit without screaming, “WE HAD THE MAJORITY IN CONGRESS!” If you want credit for stuff, gotta’ accept the blame as well.

         I have close to no doubt that if Democrat’s still controlled the House, Obama would’ve gone to Congress first or within short order of bombing. It’s still wrong he hasn’t gone to Congress, but still understandable.

         Oh, and nice job not actually referring to the President by ya’ know, his given name.

         • Great. If Barry’s presence as POTUS necessarily creates sclerosis in the body politic then let’s gid rid of Barry (or President Obama) and we can all have a very merry Christmas.

         • I’m skeptical that this is particular to Obama; this conflict is a stark manifestation of the institutional conflict over the balance of power between legislature and executive which is what interests me about it. Getting into Team Red versus Team Blue does not illuminate the Constitutional issues raised by this situation, and most of the time, politics short-circuits and obstructs actual thought..

           Thus, “The President” instead of “Barack Obama,” particularly when I’m interested in the Constitutional issues rather than the political ones. I did the same thing back when George W. Bush was President and Constitutional issues arose. The archives are listed to the left right — you can look it up.

2. I realize it is a truism that current Congresses cannot bind future Congresses (though it raises the question why, given the additional strictures of separation of powers, they can bind future presidents, but that is a topic for another day). But suspend that reservation for a moment and consider this proposal:

   The War Powers Resolution should be amended to either, 1., withdraw the (perhaps not intentionally, but, due to the legal language, in fact) broad permission for presidents to unilaterally initiate military actions lasting up to 60 days, after which, if they continue absent Congressional action (i.e. the default condition if such actions envisioned by the Resolution become complicated), become illegal actions by our government according to its own laws, or else, 2., (what I am more focused on here) require Congress to act in some legally forceful way, on or before the 60th day after the president issued notification of the introduction of U.S. Armed Forces into hostilities, expressing its sense of whether it approves of the a WPR-pursuant Executive action that is still ongoing after the 45th day after notification.

   Even if Congress would make a practice of ignoring this injunction against itself, this would force both branches to wrestle with the problem of being in contempt of the law absent action if the General Will (sic) in Congress and in the Executive Branch were for the prosecution of the conflict to go on roughly as had been the status quo (which I believe is the bottom-line, though not unanimous, political reality regarding the actual desired policy in Congress right now regarding Libya). And if there were majority opposition to the president’s action, this would ensure, or at least encourage that it be swiftly and clearly aired through official actions of the body.

   In any case, it seem to me that if the Congress wants to grant the president the attitude to act on his own, but draw an arbitrary time horizon within which he must conclude hostilities or else default to either lawbreaking or else possibly damaging untimely cessation of action (even when, given the sclerosis of the legislative process, such may not even the will of the Congress) — all for the sake of Congress’ wanting to reclaim its Constitutional prerogatives at that time (though still lend them away for the 60 days), then it would be reasonable to ask them to commit in law to *actively* doing that reclamation, rather than subject the body politic to a default of possibly either lawbreaking or else artificially constrained war prosecution. It would also let us avoid unresolvable disputes about whose responsibility it is that Congress take such action, i.e. we would not have to parse the WPR to find out whether the president is required to “seek” authorization, or simply comply with the resulting rendering of his actions as illegal after day 60 absent Congressional action, and what particular actions would qualify as “seeking.” And it would clarify the political uncertainty about whose responsibility such action would be: leaders in Congress could no longer claim that the president had failed to “seek” their authorization (read: kiss the ring), hence rendering them speciously unable to lead their bodies to authorize action they would, on the merits, be inclined to authorize. A requirement by Congress that it itself act with respect to the conflicts it anticipated in the WPR would make clear that the leaders fo Congress are responsible for the votes the Houses do and don’t take. The Executive is responsible for executing the laws and commanding the military.

   Or, as I say, they could withdraw their 1973 60-day loan (abrogation?) of their (exclusive) responsibility to decide when and where the nation goes to war. Doing neither of these has contributed to the development of the situation we see before us today, I would argue.

   This may be a procedural non-starter: I don’t know if any Congress can even purport to require a future Congress to affirmatively act (obviously leaving the nature of the action – positive or negative wrt a particular military commitment in this case, open to the conscience of the Representatives). But if it is a comprehensible option, I think it could go a long way toward making the War Powers Resolution a more functional, precise instrument for governing the rough structure of inter-branch warmaking powers given to us by the drafters of our Constitution.

   • ah, crap. tag fail.

3. http://www.loweringthebar.net/2011/06/house-bravely-takes-no-action-at-all-on-libya.html

   • Damn. I wish I’d written that.

   • Pat:

     No, Congress did take action. Dens were willing to tell Barry they won’t authorize the Libya mission but for all their anti war whining, they didn’t have the guts to cut off funding because that might make Barry look bad.

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