Wrong Boehner; Obama is Breaking the Law Right Now

by Ben Johnson

Only in the liberal media can a weak entreaty to obey the law be considered an act of political warfare. The media have portrayed House Speaker John Boehner’s letter to Barack Obama, merely asking the president for another legal explanation for his war-by-decree in Libya, as “ratcheting up the pressure.” The New York Times correctly noted, “it is not clear if [Boehner’s Congressional] resolution and follow-up letter have any teeth.” It is actually a five-day pass to keep breaking the law.

The text of Boehner’s letter reads, “it would appear that in five days, the Administration will be in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the mission.” After blasting the president’s “refusal to comply with the basic tenets of the War Powers Resolution,” Boehner invokes the Constitution – but not the section many legal scholars may have expected. Instead of noting what our Founding document has to say about the power to declare war, Boehner writes: “The Constitution requires the President to ‘take Care that the Laws be faithfully executed,’ and one of those laws is the War Powers Resolution, which requires an approving action by Congress or withdrawal within 90 days from the notification of a military operation.”

There are only four problems with Boehner’s letter: it’s wrong on the Constitution, it’s wrong on the law, it offers no consequences for wrongdoing, and it came 30 days too late. Obama is in violation of the War Powers Resolution right now.

The Constitution or Cronyism?

Democratic Congressman Brad Sherman of California gave a more accurate assessment nearly a month ago when he said Obama is “shredding the Constitution.” Today, the House passed an amendment Sherman authored to defund the military action in Libya, by a margin of 248-163. (Whether the final bill passes the House remains to be seen.)

More important than Obama’s violation of the law is his violation of the Constitution. Article I, Section 8 vests Congress alone with the ability to “declare War, grant Letters of Marque and Reprisal” and of “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” James Madison’s notes on the Constitutional Convention made clear he understood the term “declare” war as only “leaving to the Executive the power to repel sudden attacks.” Delegate Elbridge Gerry added he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” The Founders recognized from bitter experience that power belongs only to a tyrant.

Since the “kinetic action” in Libya did not repel a sudden attack – it was an act of aggression, not retaliation – the Constitution demands prior Congressional authorization, which Obama did not seek.

War Powers? Yes. Resolution? No.

Boehner apparently believes the War Powers Resolution allows the president to send troops into any conflict, for any reason, for 90 days before seeking a vote of approval. Yet that law, too, specifically limits the president’s powers to responding to “an attack upon the United States, its territories or possessions, or its armed forces.” It then requires the president to report his action to Congress and allows this situation to endure only 60 days, not 90. The relevant section states:

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces. (Emphases added.)

The 60-day window likely makes the law unconstitutional. But accepting it at face value, the fact remains the president did not gain authorization in that time, nor did he claim the safety of the armed forces necessitated their remaining in Libya 30 more days. Remaining imperils them. Thus, the 90-days referenced in the law are irrelevant.

Obama is in violation of the law right now – and has been for nearly a month. His actions have triggered an unrecognized Constitutional crisis that requires consequences, up to and including his impeachment and removal from office.

Instead, Boehner weakly states, “I must ask you the following questions”:

Have you or your Administration conducted the legal analysis to justify your position as to whether your Administration views itself to be in compliance with the War Powers Resolution so that it may continue current operations, absent formal Congressional support or authorization, once the 90-day mark is reached?  Assuming you conducted that analysis, was it with the consensus view of all stakeholders of the relevant Departments in the Executive branch? In addition, has there been an introduction of a new set of facts or circumstances which would have changed the legal analysis the Office of Legal Counsel released on April 1, 2011?  Given the gravity of the constitutional and statutory questions involved, I request your answer by Friday, June 17, 2011.

He concludes his letter by stating, “I sincerely hope the Administration will faithfully comply with the War Powers Resolution.”

…And that’s it. No impending consequences, no warning funds will be cut off, no threat of impeachment – just an expression of “hope” that the president will begin to keep a law he has broken for 25 days.

All Boehner really asks is that the president come up with another round of creative legal lies. The bar now virtually scraping the ground, all the president needs to do is answer this set of inept and ridiculous questions to his own satisfaction and he could continue the war indefinitely.

If Boehner does not care about the Constitution or the law, he should at least relish the fight for political reasons. Obama cannot withstand this assault, not only because his case is indefensible, but because he lacks the support of his own party. Dennis Kucinich has threatened impeachment. Jerrold Nadler, the bulwark of Bill Clinton’s House defense during the last impeachment, has charged Obama with acting like a king and dictator. Senator Jim Webb, who gave the Democratic response to the 2007 State of the Union Address, has been the most outspoken. Last Wednesday, he gave a blistering speech the Richmond Times-Dispatch called his “finest hour.” Even Ralph Nader has said, “Obama should be impeached.”

Yet the Republican leadership has been predictably disappointing. Boehner wrote a wimpy resolution demanding reports but saving Obama’s bacon. Senate Minority Leader Mitch McConnell whimpered, “The administration is going to have to decide whether it thinks [the War Powers Resolution] was triggered, and we’ll have to respond to that.” And Eric Cantor is trying to provide Obama legislative cover.

Real leadership is coming from the party’s despised Tea Party wing. Ron Paul has said the act is impeachable. Michele Bachmann has opposed the action from its inception. Five senators, including Rand Paul and Jim DeMint, have pressed the administration to adhere to the rule of law, and Tennessee Senator Bob Corker, in teaming with Webb on a joint resolution, called Obama’s actions “an unacceptable way of treating a co-equal branch of government.” And North Carolina’s Walter Jones has vowed to pursue the matter in court.

John Boehner is a sympathetic and likable figure, but he misunderstands his role in Congress. He was not elected to be the opposition party leader and compromise away his party’s principles with the president. He was not even elected to preside over the House of Representatives, as important as that role is. He was elected, mandated, and has vowed to uphold the Constitution of the United States of America. That requires more than afternoon letters, mid-day cigarette breaks, and mid-morning rounds of golf.

In the midst of this unprecedented assault on our system of government, Boehner is steadfastly refusing to uphold that sacred charge.