When Congress fails to do its job

Bad precedent becomes bad law

Law Professor Jack Goldsmith on presidential and congressional powers and practice, law making and war making

Excerpt, minor editing by Carolyn Bennett

“… Almost all litigation seeking to resolve whether a war was properly launched has been dismissed as a ‘political question’ or because the plaintiff lacked standing,” Professor Goldsmith wrote at the start of the U.S. invasion of Libya. As a result, he continues, the political branches [Executive and Legislative] almost exclusively by practice have worked out the constitutional issue between themselves, not by the courts. That practice confirms that the president, under his commander-in-chief and other executive powers, has very broad discretion to use U.S. military force in the absence of congressional authorization.

Since the beginning of the Republic, Goldsmith says, “presidents have done this more than a hundred times in military actions large and small —

The largest and most consequential unauthorized military action is the Korean War launched by President Truman in 1950. Another big conflict without congressional authorization—and, indeed, in the face of an overt congressional vote that declined to provide such authorization—was President Clinton’s Kosovo intervention in 1999.

Some less significant unilateral uses of military force in the past 30 years include Haiti (2004), Bosnia (1995), Haiti (1994), Somalia (1992), Panama (1989), Libya (1986), Lebanon (1982), and Iran (1980). The executive branch has issued public legal opinions explaining the constitutional basis for most of these actions. …

“Critics will claim that a pattern of consistently violating the Constitution cannot remedy the illegality of these actions but that is not the right way to view this pattern.

“An important principle of constitutional law—especially when the allocation of power between the branches is at issue—is that constitutional meaning gets liquidated [purged, eliminated] by constitutional practice.

[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned … may be treated as a gloss on ‘Executive Power’ vested in the President by § 1 of Art. II

Past practice does not, by itself, create power, but long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent’ [Goldsmith quotes former Chief Justice William H. Rehnquist’s opinion in Dames & Moore v. Regan]”

Congress asleep at wheel

“Congress has known about this pattern of presidential unilateralism for some time and done little in response,” Goldsmith continues to argue the obvious.. “[Congress] has never impeached a president for using force in this way. [Congress] has continued to finance an enormous standing military force in the face of this practice.

“[Congress] has done practically nothing by statute to push back on the president’s power to initiate military action with that standing military force.

“Not even the famous War Powers Resolution of 1973 does much to address the unauthorized initiation of force by a president. It requires the president to submit a report to Congress within 48 hours whenever armed forces are introduced ‘into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.’ After the president reports the introduction of forces abroad, the resolution requires him to withdraw those forces within 60 days (or 90 days, based on military necessity) unless Congress has authorized continued operations.…”

War Three on Muslim country

“…It is unclear how, on balance,” Goldsmith says, “a third war in a Muslim country helps [U.S.] foreign policy goals. … It is hard to justify military action in Libya while the United States does not use military force in the face of brutal crackdowns by allies elsewhere in the Middle East. It was especially unwise not to explain this action to the American people in advance or to better consult with and seek formal authorization, or at least political support, from Congress. …

“… It does not appear that President Obama gave the issue of domestic political support much thought … This is an astonishing oversight — if it was that — from a man,” Goldsmith concludes, “who campaigned on the need for retrenchment and prudence in the use of U.S. military force.”

From Democracy Now's Tuesday headlines

NATO warplanes today Hit Tripoli with the Heaviest Bombing to Date — 

At least 15 air strikes struck the city earlier today, triggering massive explosions. The bombing comes as the United States and its NATO allies are throwing more support behind [anti-government forces]. The U.S. State Department’s top Middle East envoy, Jeffrey Feltman, has reportedly visited their headquarters in Benghazi. 

France and Britain have announced plans to deploy attack helicopters for operations against pro-government fighters. 

The Libyan government reported three civilians deaths and 150 wounded.

“Libya Campaign Could Violate War Powers Law” —

The Obama administration is facing questions over whether the U.S. role in the attack on Libya is violating federal law.  Under the War Powers Resolution of 1973, the President has 60 days to deploy the armed forces without congressional approval. 

The White House has maintained that it does not need congressional backing for what it calls a ‘limited’ operation like the Libya attack; but last week a group of Republican senators sent a letter to President Obama about the 60-day deadline, urging him to seek congressional approval. 

 “Harvard law professor Jack Goldsmith, the former head of the U.S. Department of Justice’s Office of Legal Counsel, says the Libya operation marks the first time any president has violated the War Powers Resolution’s provisions on either the 60-day window or on obtaining congressional backing.”

Sources and notes

“War Power — the president’s campaign against Libya is constitutional” (Jack Goldsmith), March 21, 2011, http://www.slate.com/id/2288869/pagenum/all/

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, where he teaches and writes about national security law, presidential power, cyber security, international law, internet law, foreign relations law, and conflict of laws. Before Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel (2003-2004) and Special Counsel to the U.S. Department of Defense (2002-2003), http://www.jackgoldsmith.org/

Democracy Now Headlines, May 24, 2011, http://www.democracynow.org/2011/5/24/headlines#4http://www.slate.com/id/2288869/pagenum/all/

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