Golfing While the Constitution Burns

by Ben Johnson

When Barack Obama and John Boehner played golf this weekend, they played on the same team. How appropriate.

Barack Obama has violated the Constitution’s war-making power – reserved by Article I, Section 8, to Congress – from the moment he sent American troops into harm’s way without Congressional approval. He has been violating the War Powers Resolution since at least the 60th day of that campaign. And he has violated the most liberal reading of that act – the one Boehner has adopted as his own – since this weekend. Yet despite the letter Boehner authored last week, which the media presented as an “ultimatum,” Obama has neither obtained Congressional authorization nor removed our troops. Boehner’s letter weakly supplicated “I sincerely hope the Administration will faithfully comply with the War Powers Resolution,” but at least it seemed to set this weekend as a definitive cut-off point.

The “deadline” has come and gone, and Obama has not answered the most burning questions of the mission’s legality to anyone’s satisfaction. Instead, the president has thumbed his nose at Congress in general, Boehner in particular, and the American people at large, and the Speaker-cum-caddy has made no meaningful response whatsoever.

Obama insists the American role in Libya is too diminutive to constitute “hostilities,” so his action is perfectly legal. White House spokesman Jay Carney repeated his boss’s party line at Monday’s press conference, stating, “the War Powers Resolution does not need to be involved because the ‘hostilities’ clause of that resolution is not met.” However, soldiers in Libya are receiving an additional $25 a month in “imminent danger pay.” American drones still rain missiles down upon military targets. NATO is alternately bombing Muammar Qaddafi’s home and killing the innocent Libyan civilians they are purportedly protecting. (We had to kill the civilians in order to save them?) NATO admitted (at least) one of its bombs went off target on Sunday, killing nine civilians in Tripoli, while allied bombs allegedly killed 15 civilians in Sorman on Monday.

Not to worry, though; Defense Secretary Robert Gates said over the weekend, in a confidence-builder worthy of Churchill, “I think this is going to end OK.” Gates, who once opposed the Libyan adventure, has pulled a 180 on the matter.

Even Obama’s short-term fellow Illinois Senator, Dick Durbin, agrees Libya more than rises to the level of hostilities.

So, too, we have learned, do the best legal minds of Obama’s administration (not a coveted nor much-contested title, I assure you). In overruling his own lawyers, Obama rejected the considered conclusions of Jeh C. Johnson, the Pentagon’s general counsel, and Caroline Krass, the acting head of the Justice Department’s Office of Legal Counsel (OLC). The New York Times reported it is “extraordinarily rare” for any president to overrule the OLC. “Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.”

But then, nothing in the Obama administration transpires under “normal circumstances.”

Two former OLC lawyers outlined precisely how unusual the dismissal was. John Yoo and Robert Delahunty, who crafted the legal arguments left-wing critics label as “legalizing torture” during the George W. Bush administration, wrote in Monday’s Daily Caller, “It is unprecedented for a president to disregard the views of senior Justice and Defense Department legal advisers on a statutory question like this.” They added the president asked for the OLC to submit its legal views “informally” to give them less weight, discarding “the regular practice in administrations of both parties for more than 40 years.” They conclude Obama “is clearly flouting the law – but claiming that he isn’t.”[1]

How extreme is Obama’s view? According to the New York Times, Attorney General Eric Holder accepted Krass’ argument.

Obama instead backed the legal analysis advanced by Harold Hongju Koh and Robert Bauer.

Koh, an advocate of “transnationalist jurisprudence,” once branded the United States a member of the “axis of disobedience” – to international law. Empowering a benevolent dictator to implement the edicts of the United Nations Security Council fits neatly with his post-American internationalist ideology.[2]

The administration’s inanity is a bridge too far for many of its defenders on the Left. Influential liberal columnist Glenn Greenwald of compared Obama unfavorably to George W. Bush before telling Amy Goodman of Democracy Now! that “Anytime the president violates the law in a significant way, impeachment is supposed to be one of the leading remedies.” He quickly added,” I think the president is clearly violating, not only the War Powers Resolution, but also the Constitution.”

Ironically, some people considered authorities by conservatives think Congress is the guilty party. Max Boot of Commentary magazine lectured that Republicans stood at the brink of “blinkered isolationism and obstructionism.” He argued, unpersuasively, that the GOP does not want to give up the ship when victory in Libya is just around the corner. “Qaddafi’s regime,” he claimed, “is teetering and may be brought down before long.” Yet our “failure to do more in Libya is already hurting the NATO alliance.” Boot brayed this “recalls nothing so much” as when Republicans prevented Bill Clinton from sending ground troops to Kosovo to install al-Qaeda’s affiliate, the Kosovo Liberation Army. The KLA somehow won anyway and began peddling heroin while destroying more than a hundred Orthodox Christian churches. Denying these fundamentalist Islamic torturers U.S. military assistance, Boot insisted, made Republicans look “foolish and partisan.”

Boot would be less threatening were he alone. Over the weekend, two Republican senators booted up the same tired campaign of dismissal and demonization. John McCain warned of growing “isolationism” in the party of Warren G. Harding, Robert Taft, and John W. Bricker.

Sen. Lindsey Graham, R-SC, said flatly, “Congress should sort of shut up.”

As for our fearless leader in the House? Boehner continues to protect The One from the many. Perhaps this should have been foreseeable. In 1999, Boehner called the War Powers Resolution “constitutionally suspect” – because it limited presidential war-making powers too much. “A strong presidency,” he said, “is a key pillar of the American system of government – the same system of government our military men and women are prepared to give their lives to defend.”

On the contrary, Mr. Speaker. A constitutional presidency is a key pillar of the American system of government, in whose defense our men and women risk their lives. So is a Congress that acts within its constitutional prerogatives. Because Boehner’s leadership does not provide the latter, we also lack the former.

Boehner golfs while Obama burns the Constitution, and that should leave all Americans teed-off.


1. Part two of their essay is an utter shambles, in which they claim Obama has the right to behave as he is and claim to be guided by “the understanding of the Framers and the constitutional structure.” Instead, they call on him to fully repudiate the War Powers Resolution. Their aim is to cure lawless fascism with more lawless fascism. On another note, they write, “We leave for another day the question of whether Holder, if he truly honored his position as attorney general, ought to resign because of the politicization of the Justice Department under his watch.”

2. Obama also selected Harold Koh to defend the United States before the UN Human Rights Council.