The news that 10 members of Congress have filed suit against President Obama claiming he has violated the War Powers Resolution should come as no surprise. President Obama is simply the latest in a long line of presidents – all of them – to claim for himself the unilateral right to determine when, where, how and how long are armed forces can be deployed in the field.
This is not a right/left, liberal/conservative thing. Dennis Kucinich and John Boehner man one side of the debate and Barack Obama and George W. Bush man the other. Hell, Senator Barack Obama the senator doesn’t agree with President Barack Obama on this topic.
Instead, the debate is an institutional one. Congress takes seriously the Constitutional words in Article I, Section 8 that it alone has the power to declare war. Each president takes just as seriously his duties as commander-in-chief and the oath of office to protect and defend the country as enumerated in Article II.
An that’s all it takes to start a Constitutional tug-of-war that has lasted until today.
Everybody pretty much agrees that the President doesn’t need Congressional authorization to deploy troops in response to an attack or to stop an attack that is imminent. Over the years, however, succeeding presidents have used those exceptions to stretch their usage at least into controversial if not outright distorted grounds.
Even more effectively, though, presidents have gotten around the Constitutional requirements by simply defining a deployment as something other than “war.” Hence the long line of “police actions,” “peacekeeping missions.” and “limited kinetic engagements” that populate our history of going to other countries and tearing up big chunks of it.
The 1973 War Powers Resolution came about when frustration about our involvement in Vietnam – which to many was an unauthorized war – reached a peak in Congress. The joint resolution passed both house overwhelmingly and then was passed again over President Nixon’s veto.
The resolution actually represents a major concession by the Congress in that it allowed the president to deploy troops pretty much as he sees fit for up to 60 days with only an after-the-fact notice to Congress. While a retreat in the eyes of some Constitutional scholars, it also was a recognition that the framers’ worldview – in which the development of threats and responses took months or years and that most armed conflict was nation versus nation in nature – no longer applied.
Good intentions, perhaps, but in practice the War Powers Resolution has simply given executives another way to deploy troops as they wish. When it suits their purpose, presidents cite their compliance with the resolution as a post-hoc justification for their actions. When it doesn’t, as Mr. Obama did today, they assert that the Resolution doesn’t apply and is un-Constitutional to boot.
In case you’re wondering why the Constitutionality of these actions and resolutions are still in question, the answer is that no branch of government – not the executive, not the legislative and certainly not the judiciary – wants this question cleared up. The legislative and executive branches both worry that the courts will weaken their current powers and the judicial branch does not want the job of parsing the Constitutionality of such a touchy subject. A ruling one way or the other could put one of the branches of government into direct conflict with the finding and bring to the fore a Constitutional crisis that we’ve all managed to mostly ignore for nearly 225 years.
Accordingly, expect this lawsuit to go pretty much nowhere because – after the press conferences are over – the last thing anybody really wants is a speedy trial.