Biden on Executive Power

Miles's Law: where you stand depends on where you sit.  

Charlie Savage,   Maggie Haberman and Jonathan Swan at NYT:

If he is elected to a second term, President Biden pledged that he will go to Congress to start any major war but said he believed he was empowered “to direct limited U.S. military operations abroad” without such approval when such strikes served critical American interests.

“As president, I have taken great care to ensure that military actions carried out under my command comply with this constitutional framework and that my administration consults with Congress to the greatest extent possible,” he wrote in response to a New York Times survey of presidential candidates about executive power.

“I will continue to rigorously apply this framework to any potential actions in the future,” he added.

The reply stood in contrast to his answer in 2007, when he was also running for president and, as a senator, adopted a narrower view: “The Constitution is clear: Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”

Not just war powers. 

In 2019, for example, Mr. Biden said that if elected, he would order the Justice Department to review and potentially replace a legal policy memo that says sitting presidents are temporarily immune from indictment. He strongly criticized the department’s interpretation of the Constitution, which limited the special counsel investigating the Trump campaign’s ties to Russia and Mr. Trump’s attempts to impede that inquiry, Robert S. Mueller III.

But Mr. Biden never followed through on that pledge. He is now protected himself by the Justice Department’s theory since a special counsel, Robert Hur, is investigating how several classified documents were in his possession when he left the vice presidency.

Interpreting Curtiss-Wright

At R Street, Louis Fisher writes about United States v. Curtiss-Wright Corp., 299 U.S. 304 

Justice Sutherland’s major error in CurtissWright was to completely misrepresent and misinterpret a speech that John Marshall delivered in 1800 as a member of the House of Representatives. With Thomas Jefferson in that election year attempting to defeat President John Adams, Jeffersonians in the House urged that Adams be either impeached or censured for turning over to England an individual charged with murder. Jeffersonians thought the individual was an American under the name of Jonathan Robbins, but in fact he was Thomas Nash, a native Irishman. 

In his speech, Marshall rejected the move for impeachment or censure by explaining that President Adams was not acting in some illegal or unconstitutional way. Instead, he was carrying out a provision of the Jay Treaty with England that authorized each country to deliver up to each other any person charged with murder or forgery. Nash, being British, would be turned over to England for trial. President Adams was not acting unilaterally with regard to external affairs or claiming some type of independent executive power. He was fulfilling his Article II, Section 3, authority to take care that the laws, including treaties, be faithfully executed. In the course of delivering his speech, Marshall included this sentence: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” The phrase “sole organ” is susceptible to different interpretations. “Sole” means exclusive but what is “organ?” Is it merely the president’s duty to communicate to other nations U.S. policy established by the elected branches? Reading the entire speech makes clear that Marshall intended that meaning. He was merely defending Adams for carrying out the extradition provision of the Jay Treaty. After he completed his speech, the Jeffersonians considered his argument so well reasoned that they dropped efforts to either impeach or censure Adams

War Powers: Consultation

From CRS:

Section 3 of the War Powers Resolution requires the President "in every possible instance" to consult with Congress before introducing U.S. Armed Forces into situations of hostilities and imminent hostilities, and to continue consultations as long as the armed forces remain in such situations. The House report elaborated:

A considerable amount of attention was given to the definition of consultation. Rejected was the notion that consultation should be synonymous with merely being informed. Rather, consultation in this provision means that a decision is pending on a problem and that Members of Congress are being asked by the President for their advice and opinions and, in appropriate circumstances, their approval of action contemplated. Furthermore, for consultation to be meaningful, the President himself must participate and all information relevant to the situation must be made available.1

The House version specifically called for consultation between the President and the leadership and appropriate committees. This was changed to less specific wording in conference, however, in order to provide more flexibility.

Use of Armed Forces Abroad

From the Federation of American Scientists:

There are only nineteen years since 1798 when the U.S. did not have armed forces engaged in military operations abroad, according to an updated tally from the Congressional Research Service. See Instances of Use of United States Armed Forces Abroad, 1798-2019, updated July 17, 2019.

The most recent year in which U.S. military forces were not used in a foreign conflict was 1979, according to the CRS. The CRS account does not reflect covert action, disaster relief, or training activities involving U.S. forces abroad.

Though there have only been 11 formal declarations of war, there have been hundreds of military actions including “extended military engagements that might be considered undeclared wars.”

“These cases vary greatly in size of operation, legal authorization, and significance,” CRS said. “Some actions were of short duration, and some lasted a number of years. In some examples, a military officer acted without authorization; some actions were conducted solely under the President’s powers as Chief Executive or Commander in Chief; other instances were authorized by Congress in some fashion.”

Twelve

At Brookings, Michael O'Hanlon writes:

A president of the United States can, in theory, launch nuclear war by personal decision—without any checks or balances. Whether we really think any of the candidates for president in 2016 would cavalierly start a nuclear war, the bombastic and bizarre character of much of this year’s electoral debate should make us take this question seriously. Someday, the United States really could have a mentally ill president who chose to do the unthinkable. The odds are low, but we should seek to make them even lower, given the stakes at hand. Because it looks like humankind will be stuck with the nuclear bomb for many decades (if not centuries) to come, moreover, the solution to this problem cannot be simply to get rid of all existing nuclear arsenals. We need a more immediate answer.

To be sure, a president is required by the War Powers Act of 1973 to seek congressional approval for any military action within 60 days of its inception. But most presidents consider that act unconstitutional. In any event, a nuclear war could easily devastate the planet within just days or hours—long before the 60-day stipulation would be binding. Even if a president had obtained congressional approval for a war that began using only conventional weapons, no provisions of the War Powers Act would require subsequent congressional action prior to nuclear escalation.

In short: A president could push the button all by himself or herself, legally- and constitutionally-speaking. Physically, military personnel would need to carry out the strike of course. They could choose not to, perhaps at the instruction of the secretary of defense or the four-star officer leading Strategic Command—who together constitute the chain of command between the president and the trigger-pullers. But any military officer ignoring a presidential order would be in open insubordination, subject to dismissal and court martial.

Only twelve Americans have ever held this power:

1. Truman
2. Eisenhower
3. Kennedy
4. Johnson
5. Nixon
6. Ford
7. Carter
8. Reagan
9. GHW Bush
10. Clinton
11. GW Bush
12. Obama 

Every one had flaws and made mistakes.  Some did very bad things.  But all twelve had the good sense not to launch a nuclear attack.  Will our luck run out with number 13?

Daisy Spot, 2016 ed.

Perhaps the most famous TV spot of all time is the 1964 "Daisy Spot"  in which LBJ's campaign hinted (without overtly saying) that Barry Goldwater would start a nuclear war.  (Another spot was more direct.) Democratic Super PAC Priorities USA is even more blunt about Trump.

No Authorization for the Use of Military Force

James Arkin reports at RealClearPolitics:

The war against ISIS began with airstrikes a year ago this week and lawmakers have spent significant time in the last 12 months debating the strategy and, in many cases, criticizing the way the Obama administration is conducting the fight. But one thing members of Congress have yet to do is have a vote – or even a substantive debate – over authorizing the military campaign.

Instead, President Obama has relied on past authorizations for the use of military force (AUMFs) against al-Qaeda in 2001 and in Iraq in 2002 as the legal justification for the current campaign against the terrorist organization operating mostly in Iraq and Syria. Despite the White House’s insistence, lawmakers are split on whether they agree. Some believe the president is operating within a legitimate legal framework. Others don’t.

...
Boehner, who has been a harsh critic of Obama’s strategy in fighting ISIS, was also staunchly against the president’s submission of a force authorization to Congress in February. In May, he called on Obama to “start over” and submit another draft to Congress.

The speaker’s argument is that the February draft is too narrow, restricting the commander-in-chief’s ability to wage the fight. Cory Fritz, a spokesman for Boehner, told RCP, “We have only one commander-in-chief at a time. It is unconscionable that he has offered up a plan that undermines America's ability to win his fight.”

Ultimately, most parties agreed it’s unlikely this issue will be hashed out, either in the near future because of the Iran nuclear debate or into the fall because of continuing divisions and calendar issues. But whether or not progress is made, don’t expect the group of lawmakers pushing for this debate to shy away from it.

Planning for War, Planning for Victory

General Paul Vallely (ret.) tells Newsmax that the United States has erred by fighting wars without a plan for victory.

"We have seen a lack of leadership in the White House and a really stand up position of our Joint Chiefs of Staff in the military to make sure, if we're going to put our assets in jeopardy, our personnel, then we have to go in with a plan and a victory plan and end war as soon as possible," he said.

"We've got to go back to the basics of strategy, victory, and how we win wars when we put our Armed Forces out there.

"If we don't have a sound plan for victory," Vallely said, "I would not shed one more ounce of human blood in the Middle East."

In 2006, Senator Barack Obama said something similar:

[In] any conflict, it is not enough to simply plan for war; you must also plan for success. Much has been written about how the military invasion of Iraq was planned without any thought to what political situation we would find after Baghdad fell. Such lack of foresight is simply inexcusable. If we commit our troops anywhere in the world, it is our solemn responsibility to define their mission and formulate a viable plan to fulfill that mission and bring our troops home.

AUMF Against ISIS

The president is asking Congress for authorization to use military force.  Note that no president has ever acknowledged the constitutionality of the War Powers Resolution or declared that such AUMFs

TO THE CONGRESS OF THE UNITED STATES:

The so-called Islamic State of Iraq and the Levant (ISIL) poses a threat to the people and stability of Iraq, Syria, and the broader Middle East, and to U.S. national security. It threatens American personnel and facilities located in the region and is responsible for the deaths of U.S. citizens James Foley, Steven Sotloff, Abdul-Rahman Peter Kassig, and Kayla Mueller. If left unchecked, ISIL will pose a threat beyond the Middle East, including to the United States homeland.

I have directed a comprehensive and sustained strategy to degrade and defeat ISIL. As part of this strategy, U.S. military forces are conducting a systematic campaign of airstrikes against ISIL in Iraq and Syria. Although existing statutes provide me with the authority I need to take these actions, I have repeatedly expressed my commitment to working with the Congress to pass a bipartisan authorization for the use of military force (AUMF) against ISIL. Consistent with this commitment, I am submitting a draft AUMF that would authorize the continued use of military force to degrade and defeat ISIL.

My Administration's draft AUMF would not authorize long‑term, large-scale ground combat operations like those our Nation conducted in Iraq and Afghanistan. Local forces, rather than U.S. military forces, should be deployed to conduct such operations. The authorization I propose would provide the flexibility to conduct ground combat operations in other, more limited circumstances, such as rescue operations involving U.S. or coalition personnel or the use of special operations forces to take military action against ISIL leadership. It would also authorize the use of U.S. forces in situations where ground combat operations are not expected or intended, such as intelligence collection and sharing, missions to enable kinetic strikes, or the provision of operational planning and other forms of advice and assistance to partner forces.

Although my proposed AUMF does not address the 2001 AUMF, I remain committed to working with the Congress and the American people to refine, and ultimately repeal, the 2001 AUMF. Enacting an AUMF that is specific to the threat posed by ISIL could serve as a model for how we can work together to tailor the authorities granted by the 2001 AUMF.

I can think of no better way for the Congress to join me in supporting our Nation's security than by enacting this legislation, which would show the world we are united in our resolve to counter the threat posed by ISIL.

BARACK OBAMA
THE WHITE HOUSE,
February 11, 2015.

John Yoo disagrees:

[A] closer reading of the Obama proposal reveals severe flaws that undermine this purpose. First, and most glaring, the authorization will have only a three-year lifespan, after which Congress would have to pass a new law to resurrect the war. No important declaration of war or authorization to use force has ever had such a sunset, because no armed conflict will ever obey an arbitrary deadline. Even the Framers, removed by centuries from our modern battlefield with its non-state enemies and asymmetric tactics, understood this. Alexander Hamilton argued against critics of the Constitution who wanted to impose similar limits on the government’s war powers (such as forcing armies to disband every year): Because the “circumstances that endanger the safety of nations are infinite,” he wrote in Federalist 23, “no constitutional shackles can wisely be imposed on the power.”

Hamilton and our Constitution’s Framers understood that war was so unpredictable that it could not be dictated by rules beforehand. But this is exactly the course on which the White House’s Authorization for Use of Military Force (AUMF) would set the nation. It makes little sense to announce to your enemies in advance when you will stop fighting. A three-year deadline will have the same harmful effects that Obama’s arbitrary withdrawal dates in Iraq and Afghanistan did. Groups and nations opposed to the United States, such as the Taliban in Afghanistan, ISIS in Syria and Iraq, and Iran in the Middle East, will simply wait us out. Or they may employ destructive delaying tactics in the hopes that war-weariness will lead a small minority in Congress to block a reauthorization in 2018. Try to imagine that, on December 8, 1941, President Franklin D. Roosevelt had asked Congress for a declaration of war that would last only three years. It is impossible, because FDR took war seriously and understood that our enemies fight not according to our plans, but according to their own.

The Constitution and Contemporary Politics

Tenth Annual Constitution Day Conference

Ronald Reagan Presidential Library

Simi Valley, California 

September 13, 2014

Resources on the Constitution and the Courts

The War Power

Powers of Congress (Article I, section 8):

• To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
• To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
• To provide and maintain a Navy;
• To make Rules for the Government and Regulation of the land and naval Forces...

Powers of the President (Article II, section 2):

•  The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; 

Declared and Undeclared Wars

• The list of declared wars
• Legal implications of a declaration of war
• Use of military force abroad
• The War Powers Resolution
• President Obama, ISIS and the war power
• Senator Obama's comments in 2007

Executive Power 

Powers of the President (Article II, sections 1 and 4)

• The executive Power shall be vested in a President of the United States of America ...
• [H]e shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. 

Uses of Power

• Signing statements
• Executive orders

Impeachment

Powers of Congress (Article I, sections 2 and 3):

• The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. 
• The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
• Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law

History

• Background on the impeachment process.
• There is an entire site on the Johnson impeachment.
• Another impeachment

The Affordable Care Act

Powers of Congress (Article I, section 8)

• The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises..
• To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...

Issues

• The individual mandate
• Contraceptives and Hobby Lobby
• Subsidies and Halbig

The President, ISIS, and War Powers

President Obama says that he has authority to act against ISIS because of the War Powers Act and the congressional authorization for the Iraq War. Andrew Rudelevige writes at The Washington Post  that neither rationale holds up.

First, the Obama administration has not actually filed any reports under the War Powers Act (or rather Resolution — thus, the “WPR”). The president has indeed sent a number of letters to Congress about the Islamic State and Iraq since June — the latest such is dated September 8 — but these are simply to keep Congress “fully informed.” Doing so is “consistent with the War Powers Resolution” (my emphasis) — but the president never says he is reporting “pursuant to” the WPR, as a consequence of that statute, as required by section 4(a)(1). The “consistent with” is boilerplate language that far predates Obama — presidents have rarely admitted that the WPR is binding or even constitutional — but the letters do not concede that the WPR limits his authority in any way. Indeed, in each letter Obama claims that he is acting “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”

...
How about the authorization to use force in Iraq (P.L. 107-243), passed nearly 12 years ago? Is that a “specific statutory authorization” for the present circumstance? Had the Bush administration’s preferred text been adopted in 2002, Congress would have given the president power “to use all means” to “restore international peace and security in the region,” i.e., the entire Middle East, and Obama would have a great case. But the actual resolution states:

The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to -- (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

Thus the authorization is for the use of force against (the state of) Iraq, rather than in Iraq. The Security Council resolutions referred to deal with weapons of mass destruction; with “repression of its civilian population”; and with “threatening its neighbors.” The Islamic State may be doing some of these things, but Iraq itself is not; indeed, the threat to the United States from Iraq’s government seems to be from the latter’s incompetence. Potential attacks within Syria’s borders seem even more removed from the authorization’s intent.

Iraq and War Powers

A number of posts have discussed war powers.

Harvard law professor Jack Goldsmith writes:

If the President plans to engage in military operations in Iraq for “months” (and almost certainly longer) in an effort to address the militant threat posed over the long term there, then the case for doing so in reliance solely on his inherent Article II self-defense power just grew weaker, legally and especially politically, and the case for seeking authorization from Congress for the military strikes just grew stronger. As I noted yesterday, the case for seeking congressional authorization in this context was made forcefully and persuasively less than a year ago by President Obama himself, when he explained why he was seeking congressional authorization prior to military strikes in Syria.

In January 2007, candidate Obama said:

 What we're saying is that if we can begin a phased withdrawal and give the Iraqi government a sense that we are not engaging in an open-ended commitment, we're not going to babysit a civil war and we're not going to continue to throw American troops at the problem, that they will actually arrive at the sort of political solution that's necessary.

A few weeks later, his then-rival and future secretary of state cribbed his line, as The New York Times reported:

On Sunday, Mrs. Clinton for the first time on the campaign trail used the phrase “civil war” to describe the violence in Iraq. Speaking about building coalitions with Middle Eastern nations, she said she would take a new approach: “I would say ‘I’m sorry, it’s over. We are not going to baby-sit a civil war.’ ”

War Powers and Chad

The president has sent this letter to the House Speaker John Boehner (R-OH) and Senator Patrick Leahy (D-VT), president pro tem of the Senate:

Approximately 80 U.S. Armed Forces personnel have deployed to Chad as part of the U.S. efforts to locate and support the safe return of over 200 schoolgirls who are reported to have been kidnapped in Nigeria. These personnel will support the operation of intelligence, surveillance, and reconnaissance aircraft for missions over northern Nigeria and the surrounding area. The force will remain in Chad until its support in resolving the kidnapping situation is no longer required.

This action has been directed in furtherance of U.S. national security and foreign policy interests, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.

I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution (Public Law 93-148). I appreciate the support of the Congress in these actions.

Congress and Syria

According to The Washington Post, the president told chief of staff Denis McDonough that there were two reasons why he abruptly decided to seek congressional authorization for a military strike on Syria.

He wanted there to be political accountability — lawmakers from both parties, he believed, should be on the record in support or against the war.

Obama told advisers that congressional support, far from certain, given the animosity that extends the length of Pennsylvania Avenue, would ultimately strengthen support for the war and perhaps protect public opinion for a sustained operation.

The other reason? Unlike the U.S.-led military operation in Libya in 2011 — which was supported by the U.N. Security Council and the Arab League — the United States did not have the same level of international backing.

Obama’s proposal to invite Congress dominated the Friday discussion in the Oval Office. He had consulted almost no one about his idea. In the end, the president made clear he wanted Congress to share in the responsibility for what happens in Syria.

As one aide put it, “We don’t want them to have their cake and eat it, too.”

More Biden on War Powers

Yesterday's post included a passage from a March 15, 1995 Senate floor speech by Joe Biden, in which he raised questions about presidential war powers.  Here is another passage from the same speech.

Last summer, Clinton administration officials characterized the Haiti operation as a mere police action, a semantic dodge designed to avoid the need for congressional authorization. 

Some of my Democratic colleagues suggested that the war clause of the Constitution was entirely ceremonial and that the President had virtually unlimited discretion to order an invasion of Haiti. These were some of the same Democrats who stood here on the floor and said President Bush did not have the authority to act in the gulf without congressional assent; proving the axiom that Senators and Congressmen tend to pick what side of their issue they are on depending on the partisan need. 

We have the interesting phenomena, Republicans on the floor who said there was a broad range of congressional authority, but when it came to Clinton exercising it, saying, no, he did not have the authority; and Democrats who were on the floor telling President Bush he did not have the authority but saying, no, President Clinton does. To be sure, there were some of my Republicans and Democratic friends who were consistent-who may have questioned the President's policy in Haiti but did not question the right to deploy those troops in the absence of congressional consent.

In my view, the assertions expressed during the Haitian crisis underscore that the doctrine asserted by President Nixon 25 years ago still grips the executive branch. More alarming, the congressional viewpoints I summarized suggest that the legislative surrender of the war power continues, based in part on whether or not the man or woman in power is a man of your party and whether you agree with him on the substance of the action.

Other recent posts have noted a similar phenomenon with debates over the filibuster.

Biden on War Powers

On March 15, 1995, then-Senator Joseph Biden spoke on the Senate floor about war powers:

The proposition that Congress had the power to initiate all wars except to repel attack on the United States is also strengthened in view of the second part of the war clause. That is the power to "grant Letters of Marque and Reprisal."

Now, most Americans, I daresay most Members of Congress, I daresay most members of Government, do not even know what the "power to grant Letters of Marque and Reprisal" means and why it is in the Constitution. An anachronism today, letters of marque and reprisals were licenses issued by governments, usually to private citizens, but on occasion to government agents, empowering these private citizens or government agents to seize enemy ships or take action on land, short of all-out war.

In essence, it was the 18th century version of what we now regard as limited war or police actions. That is what letters of marque and reprisal were. If you are having trouble with pirates off the coast, you are not looking to declare war. The Federal Government, in this case the Congress, could go out and hire out, give permission to, give a letter of marque and reprisal to a local. Think of it in terms of a local security agency that comes by and patrols your neighborhoods. You could give letters of marque or reprisal and say, "You are authorized under the law, through the Congress, to go seize those pirate ships."

That is what it was about. A leading commentator of the day-that is, the late 1700's-a leading commentator of the day on international law explained the distinction this way: "A perfect war is that which entirely interrupts the tranquility of the state. An imperfect war, on the contrary, is that which does not entirely interrupt the peace.Reprisals are that imperfect kind of war."

So, when we hear people talk about imperfect wars, it is used as a term of art as it was used back in the late 1700's. The framers undoubtedly knew that reprisals or imperfect wars could lead to general or all-out wars. England, for example, had fought five wars between 1652 and 1756 which were preceded by public naval reprisals.

 

The Emancipation Proclamation

Today is the 150th anniversary of the Emancipation Proclamation.  The National Archives describes it:

President Abraham Lincoln issued the Emancipation Proclamation on January 1, 1863, as the nation approached its third year of bloody civil war. The proclamation declared "that all persons held as slaves" within the rebellious states "are, and henceforward shall be free."

Despite this expansive wording, the Emancipation Proclamation was limited in many ways. It applied only to states that had seceded from the Union, leaving slavery untouched in the loyal border states. It also expressly exempted parts of the Confederacy that had already come under Northern control. Most important, the freedom it promised depended upon Union military victory

In The New York Times, historian Eric Foner explains that Lincoln, who once proposed freeing slaves by compensating slave-holders and resettling the emancipated people outside the United States, now took a  different approach:

The proclamation did not end slavery in the United States on the day it was issued. Indeed, it could not even be enforced in most of the areas where it applied, which were under Confederate control. But it ensured the eventual death of slavery — assuming the Union won the war. Were the Confederacy to emerge victorious, slavery, in one form or another, would undoubtedly have lasted a long time.

A military order, whose constitutional legitimacy rested on the president’s war powers, the proclamation often disappoints those who read it. It is dull and legalistic; it contains no soaring language enunciating the rights of man. Only at the last minute, at the urging of Treasury Secretary Salmon P. Chase, an abolitionist, did Lincoln add a conclusion declaring the proclamation an “act of justice.”

Nonetheless, the proclamation marked a dramatic transformation in the nature of the Civil War and in Lincoln’s own approach to the problem of slavery. No longer did he seek the consent of slave holders. The proclamation was immediate, not gradual, contained no mention of compensation for owners, and made no reference to colonization.

In it, Lincoln addressed blacks directly, not as property subject to the will of others but as men and women whose loyalty the Union must earn. For the first time, he welcomed black soldiers into the Union Army; over the next two years some 200,000 black men would serve in the Army and Navy, playing a critical role in achieving Union victory. And Lincoln urged freed slaves to go to work for “reasonable wages” — in the United States. He never again mentioned colonization in public.

As is common in American civic culture, Lincoln invoked God toward the end of the document:

And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.

And I further declare and make known, that such persons of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.

And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.

 

 

The Godfather and the Presidency

At the Philadelphia Inquirer, Dick Polman quotes The Godfather to make a constitutional argument:

Michael Corleone tells Kay that his dad, Vito, is really no different than "a senator or a president." Kay tells Michael that he's being naive, because "senators and presidents don't have men killed."

To which Michael says, "Oh. Who's being naive, Kay?"

You tell her, Michael! Because, as the U.S. attorney general made clear the other day - in a speech that got little play in the media, thanks to the Republican primaries - Obama is the first president to claim the legal authority to whack U.S. citizens, to act as judge, jury, and executioner without a shred of transparency or public accountability. 

This issue flared briefly last fall after Anwar al-Awlaki, an American-born, American-educated radical Muslim cleric, was lit up in Yemen by one of Obama's drones. ... 

Indeed, 18 months before Awlaki's death, it was reported (via government leaks) that Awlaki's name had been placed on a hit list of American citizens, but today we still don't know who is on the list, why they were placed on the list, what kind of evidence puts you on the list, or which government officials maintain the list. What's clear, however, is that an American citizen can be placed on the hit list without knowing it, and with no opportunity to face or refute one's accusers.

All that would appear to be in violation of the Fifth Amendment (No person shall be "deprived of life ... without due process of law"), as well as Obama's constant boast that he is running "the most transparent administration in history." And when Attorney General Eric Holder said in his speech that Obama can make these life-or-death decisions without any judicial oversight, he contradicted Sen. Obama, who had insisted on the Senate floor that even presidents fighting a war on terror needed to be checked and balanced by judicial oversight. 

 

Another War

The Armed Forces Press Service reports:

President Barack Obama has authorized the deployment to central Africa of 100 combat-equipped U.S. forces whose mission is to help regional forces fight the notorious Lord's Resistance Army and its leader, Joseph Kony.

In a letter to House Speaker John Boehner and Daniel Inouye, president pro tempore of the Senate, Obama notified Congress of his actions, as required by the War Powers Resolution of 1973, a federal law intended to limit the president’s power to commit the United States to armed conflict without congressional consent.

On Oct. 12, the president wrote, the initial team of U.S. combat-equipped military personnel deployed to Uganda. A total of 100 service members and civilians will deploy to the region over the next month, including a second combat-equipped team and headquarters, communications and logistics personnel.

Obama said the forces will provide information, advice and assistance to select partner nation forces and act as advisers to partner forces that seek to remove Kony and other senior LRA leadership from the battlefield.

U.S. forces will not engage LRA forces unless necessary for self-defense, the president said, and “all appropriate precautions have been taken to ensure the safety of U.S. military personnel during their deployment.”

The president's letter closes this way:

I have directed this deployment, which is in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive. I am making this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution (Public Law 93 148). I appreciate the support of the Congress in this action.

Note that the phrase is "consistent with," not "in compliance with." No president has ever acknowledged the constitutionality of the War Powers Act. As law professor Lori Damrosch wrote in 2000:

President Ford complied with the reporting requirements of the War Powers Resolution in relation to evacuations from Danang, Phnom Penh, and Saigon, and the retaking of the SS Mayaguez. Nonetheless, he maintained the position of principle that the War Powers Resolution could not impair the President's constitutionally-based powers.When reporting to Congress as the War Powers Resolution provides, neither Ford nor his successors ever conceded that any legally operational significance would attach to a report submitted "consistent with the War Powers Resolution."In other words, no President has ever acknowledged the Resolution's timetable of sixty or ninety days for withdrawal of troops (unless Congress were to authorize their participation in hostilities) to be running.

Libya Setbacks for the President

Gallup reports:

Americans are more likely to say they disapprove than approve of the U.S. military action in Libya. That represents a shift from three months ago, just after the mission began, when approval exceeded disapproval.

The results are based on a Gallup poll conducted June 22. The House of Representatives is set to vote on resolutions that would limit the U.S. role in Libya, partly because of questions about whether the mission violates the War Powers Act since President Obama did not obtain congressional authorization for it. The U.S. sent forces to Libya in March as part of a multinational force to protect rebels in that country from attacks by Libyan President Moammar Gadhafi.

Democrats are the only political group to show more support for than opposition to the U.S. involvement. Independents are the most likely to show opposition, with a majority disapproving.

Republicans' opinions have changed the most since March, moving to 39% approval from 57%. This likely reflects increased criticism of the mission's legality and cost from some Republican congressional leaders and presidential candidates. Independents' views have become slightly more negative over the last three months, while Democrats' opinions have been largely stable.

The poll sought to explore Americans' reasons for opposition to the operation by asking those who disapprove whether they disagree with the substance of the policy or with how it was executed. Most who disapprove, 64%, do so because they do not think the U.S. should be in Libya at all. Just under a third, 29%, disapprove because they do not think the president obtained the necessary approval from Congress to conduct the operation.

Politico reports:

The House delivered a surprising split decision on Libya Friday: Voting against authorizing the use of American forces there and then, an hour later, refusing to limit funding for the mission.

In essence, the House decided that it will neither endorse nor totally reject American intervention in Libya.

It appears that a last-minute White House lobbying effort to stave off Democratic defections worked — at least on the spending-limitation bill. Secretary of State Hillary Clinton asked House Democrats to back their president in a closed-door meeting in the Capitol on Thursday, and National Security Adviser Tom Donilon summoned a small group of liberals to the Situation Room at 7 a.m. Friday for a classified briefing that may have influenced a handful of votes.

Still, the House rejection of a one-year authorization of the use of force in Libya earlier Friday represented the most serious congressional challenge to the president’s war-making authority in more than a decade. It was a symbolic vote, but one that was felt on the other end of Pennsylvania Avenue.

H J RES 68 RECORDED VOTE 24-Jun-2011 12:16 PM
QUESTION: On Passage
BILL TITLE: Authorizing the limited use of the United States Armed Forces in support of the NATO mission in Libya

	Ayes	Noes	PRES	NV
Republican	8	225		6
Democratic	115	70		7
Independent
TOTALS	123	295		13

H R 2278 RECORDED VOTE 24-Jun-2011 2:00 PM

QUESTION: On Passage

BILL TITLE: To limit the use of funds appropriated to the Department of Defense for United States Armed Forces in support of North Atlantic Treaty Organization Operation Unified Protector with respect to Libya, unless otherwise specifically authorized by law

	Ayes	Noes	PRES	NV
Republican	144	89		6
Democratic	36	149		7
Independent
TOTALS	180	238		13