Moreover, noted Jack Goldsmith, who for a time headed the Bush Justice Department’s Office of Legal Counsel: “this appears to be the first time that a president has violated the War Powers Resolution’s requirement either to terminate the use of armed forces within 60 days after the initiation of hostilities or get Congress’s support.”
Columbia law professor John Bassett Moore is equally dismissive of the president’s claim:
There can hardly be room for doubt that the Framers of the Constitution when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory, and killing their soldiers and citizens, all according to his own notions of the fitness of things, as long as he refrained from calling his action war or persisted in calling it peace.
Although Congress did nothing earlier in response to President Obama’s contemptuous dismissal of its role under the Constitution, legislators now can act without fear of compromising ongoing military operations. Congress should bar use of any federal funds for future military action in Libya. Moreover, it should exact a price for presidential lawlessness. Impeachment, as then-Sen. Biden recognized, would be the appropriate legal remedy, even if today politically inconceivable. At the very least the legislative branch should retaliate against the administration: one possibility would be to defund positions held by officials, such as Harold Koh at the State Department, who advanced the president’s dishonest legal claim.
Candidate Obama promised the American people: “No more ignoring the law when it’s inconvenient.” Alas, Congress obviously must insist that he obey the law. The war in Libya is no great administration victory. Even if it were, it would be a prize too dearly bought. For the Constitution limits presidential authority to protect our liberty. And every time a president ignores a constitutional restraint, another legal guarantee for our freedom is effectively erased from America’s governing document.
Image by Elizabeth Cromwell