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"Under the WPR, the President may commit U.S. forces into armed hostilities, but must advise Congress within 48 hours that he has done so. . . A 60-day clock then begins ticking, at the end of which the president must terminate his military action unless (1) Congress has specifically authorized it, (2) Congress has extended the 60 days, or (3) Congress is physically unable to meet due to an attack on the U.S. But the President may extend the 60 days by another 30 days if he certifies to Congress that he cannot safely remove U.S. forces from combat without that additional time.
"Thus, an American president operating under the WPR, basically has 92 days total to get his military business done abroad without specific Congressional authorization. That said, Congress reserves the right to itself to pull the plug on any executive military adventures by concurrent resolution at any time. However, no Congress has never done this and it is unlikely that any would. President Reagan duly reported his engagement with Libya to Congress. Likewise, President Obama duly reported his own engagement with Libya to Congress."
I can't copy more here without violating copyright infringement, however, a lot of your other questions are answered in the full article, including the concept that the President could potentially claim to have implied Authority from Congress! I think you'll find the author's bona fides sufficient.
I read Mr. Kelly's article carefully. He fails to deal with the one very important point that Sanrene has brought up.
there are 3 constitutional ways a president can bring military action according to the WPA.
1. Declairation of war
2. Statutory Authority (congress votes to grant that power)
3. America or Americans have been attacked.
In all the cases Mr. Kelly sited as precident for President Obama's current action, one of those 3 causes were in play.
Mr. Reagan bombed Lybia after American service members were killed by Libyans.
Mr Clinton's action in Kosovo were covered by congressional funding.
Mr. Obama's action to day (this can change at any time) has none of the 3 causations.
Mr. Kelly while technically correct in what he is saying, failed to deal with the underlying 3 reasons.
One simple point before i wade into Mr. Kellys comments....
Don Rumsfeld was not making a legal point. he was making a political point (which he is supremely qualified to make). His point was that Obama didn’t go to congress for statutory authority because he didn’t know what to ask for.
it is a legitimate point to make. The evidence is quite clear on this point. Obama and team have been all over the place on what the goal is. It has ranged from No fly zone to Gadhafi must go… It was just no fly zone and now we are bombing ground targets beyond Anti-Air weapons.
Additionally the international coalition is in disarray. Rumsfeld appears to be correct.
Yes, I stated that sanrene provided a political source as a rebuttal to my legal source. Politics doesn't trump the law, which I'm sure we can both agree to. And I have no doubt whatsoever that Donald Rumsfeld doesn't know diddly about why President Obama does or doesn't do a particular thing, including this. It's pure speculation. And speculation from an unreliable source who has no first-hand knowledge whatsoever.
I differ with you as regards the clarity of our mission. The President was, indeed, quite specific.
Barack Obama: "Now, here is why this matters to us. Left unchecked, we have every reason to believe that Qaddafi would commit atrocities against his people. Many thousands could die. A humanitarian crisis would ensue. The entire region could be destabilized, endangering many of our allies and partners. The calls of the Libyan people for help would go unanswered. The democratic values that we stand for would be overrun. Moreover, the words of the international community would be rendered hollow.
"And that's why the United States has worked with our allies and partners to shape a strong international response at the United Nations. Our focus has been clear: protecting innocent civilians within Libya, and holding the Qaddafi regime accountable.
I think he articulated our goals quit succinctly. We are participating to ensure the safety of innocent civilians from Moammar Qaddafi, and to ensure the region does not become destabilized and endanger our allies and partners due to Qaddafi's actions. The U.N. Resolution calls for any action necessary, and if Qaddafi is using tanks to commit the slaughter of his citizens, we're allowed to bomb the bleep out of his tanks, too.
So once Qaddafi has been rendered powerless to "show no mercy and no pity" to his citizens by whatever means he could utilize, Job Done.
As for removing Qaddafi from power, the President has said that he personally feels strongly that Qaddafi should go, but that it should be at the behest of his own citizens. We aren't trying to take him out with this mission, just render him incapable of murdering innocent civilians.
"But I want to be clear: the change in the region will not and cannot be imposed by the United States or any foreign power; ultimately, it will be driven by the people of the Arab World. It is their right and their responsibility to determine their own destiny."
I read Mr. Kelly's article carefully. He fails to deal with the one very important point that Sanrene has brought up.
there are 3 constitutional ways a president can bring military action according to the WPA.
1. Declairation of war
2. Statutory Authority (congress votes to grant that power)
3. America or Americans have been attacked.
In all the cases Mr. Kelly sited as precident for President Obama's current action, one of those 3 causes were in play.
Mr. Reagan bombed Lybia after American service members were killed by Libyans.
Mr Clinton's action in Kosovo were covered by congressional funding.
Mr. Obama's action to day (this can change at any time) has none of the 3 causations.
Mr. Kelly while technically correct in what he is saying, failed to deal with the underlying 3 reasons.
And yet, the WPA allows for those reasons to be overlooked, by affording the President the discretion to employ troops first, notify Congress second, then let the chips fall where they may with regard to whether or not the President can make his case to Congress.
You may consider it a technicality, but that's all that's required to give him cover under the WPA. Which means the answer to the question posed in this thread; "Is Obama violating the War Powers Act?", is No.
Yes, I stated that sanrene provided a political source as a rebuttal to my legal source. Politics doesn't trump the law, which I'm sure we can both agree to. And I have no doubt whatsoever that Donald Rumsfeld doesn't know diddly about why President Obama does or doesn't do a particular thing, including this. It's pure speculation. And speculation from an unreliable source who has no first-hand knowledge whatsoever.
I differ with you as regards the clarity of our mission. The President was, indeed, quite specific.
Barack Obama: "Now, here is why this matters to us. Left unchecked, we have every reason to believe that Qaddafi would commit atrocities against his people. Many thousands could die. A humanitarian crisis would ensue. The entire region could be destabilized, endangering many of our allies and partners. The calls of the Libyan people for help would go unanswered. The democratic values that we stand for would be overrun. Moreover, the words of the international community would be rendered hollow.
"And that's why the United States has worked with our allies and partners to shape a strong international response at the United Nations. Our focus has been clear: protecting innocent civilians within Libya, and holding the Qaddafi regime accountable.
I think he articulated our goals quit succinctly. We are participating to ensure the safety of innocent civilians from Moammar Qaddafi, and to ensure the region does not become destabilized and endanger our allies and partners due to Qaddafi's actions. The U.N. Resolution calls for any action necessary, and if Qaddafi is using tanks to commit the slaughter of his citizens, we're allowed to bomb the bleep out of his tanks, too.
So once Qaddafi has been rendered powerless to "show no mercy and no pity" to his citizens by whatever means he could utilize, Job Done.
As for removing Qaddafi from power, the President has said that he personally feels strongly that Qaddafi should go, but that it should be at the behest of his own citizens. We aren't trying to take him out with this mission, just render him incapable of murdering innocent civilians.
"But I want to be clear: the change in the region will not and cannot be imposed by the United States or any foreign power; ultimately, it will be driven by the people of the Arab World. It is their right and their responsibility to determine their own destiny."
Sorry Jill, you ability to quote one thing Mr. Obama has stated is no indication that is all he and others within the admin. have stated. He has been all over the board with this. and his proxies have been even more all over the board.
then there is the group being led by France. it seems no one can agree on anything.
Now, I have said and say again that I agree with the move. (thus my own conflict) I think we should be involved and i wanted France to lead it. Obama has gotten both of those things to happen. That makes me happy and this is a rare time when I am happy with him on anything.
HOWEVER. There is a real issue here that needs to be dealt with. Obama's method is outside the defined parameters of the War Powers Act. Period. Mr. Kelly's comments not withstanding.
He had no authority from congress, and no American and no American territory was attacked.
I believe that Congress needs to act right now, to give Obama cover. They can do this and should do this.
Sorry Jill, you ability to quote one thing Mr. Obama has stated is no indication that is all he and others within the admin. have stated. He has been all over the board with this. and his proxies have been even more all over the board.
then there is the group being led by France. it seems no one can agree on anything.
Now, I have said and say again that I agree with the move. (thus my own conflict) I think we should be involved and i wanted France to lead it. Obama has gotten both of those things to happen. That makes me happy and this is a rare time when I am happy with him on anything.
HOWEVER. There is a real issue here that needs to be dealt with. Obama's method is outside the defined parameters of the War Powers Act. Period. Mr. Kelly's comments not withstanding.
He had no authority from congress, and no American and no American territory was attacked.
I believe that Congress needs to act right now, to give Obama cover. They can do this and should do this.
Congress? Congress has been on vacation since Jan 5. Why would you want to disturb them?
Let me also add that, there are many reasons that pretty much everyone considers the WPA to be unconstitutional, not the least of which is the scenario described above, which is the President's ability to ignore the Big 3 and exclude Congress from the mix, and not the least ironically the fact that Presidents find it unconstitutional because the Big 3 exist in the first place, and believe it usurps their powers under Article II.
But here's the thing; Article III prohibits the federal courts from rendering "advisory opinions." No one can just ask the courts to decide a case in the abstract. They must bring an actual case before the courts before the courts can weigh in on an issue. And no one is going to challenge the WPA. No one.
And until such time as a federal court rules the WPA unconstitutional, it is, by default, constitutional. Therefore, if the President acts within its scope, even if that means deploying troops and asking permission later and that permission being denied, requiring him to remove the troops, he's still allowed to do that per the construction of the WPA.
Sorry Jill, you ability to quote one thing Mr. Obama has stated is no indication that is all he and others within the admin. have stated. He has been all over the board with this. and his proxies have been even more all over the board.
then there is the group being led by France. it seems no one can agree on anything.
Now, I have said and say again that I agree with the move. (thus my own conflict) I think we should be involved and i wanted France to lead it. Obama has gotten both of those things to happen. That makes me happy and this is a rare time when I am happy with him on anything.
HOWEVER. There is a real issue here that needs to be dealt with. Obama's method is outside the defined parameters of the War Powers Act. Period. Mr. Kelly's comments not withstanding.
He had no authority from congress, and no American and no American territory was attacked.
I believe that Congress needs to act right now, to give Obama cover. They can do this and should do this.
I haven't found the President to be inconsistent, but I'm willing to review sources that prove otherwise. And truthfully, I couldn't care less what his proxies are saying, as it's entirely possible they're misrepresenting, even unintentionally, what has been relayed to them.
I addressed the WPA thing in my prior post, but I do agree that Congress should act in this case.
there are 3 constitutional ways a president can bring military action according to the WPA.
1. Declairation of war
2. Statutory Authority (congress votes to grant that power)
3. America or Americans have been attacked.
emphasis added
This is what the WPR says. But what does the Constitution say?
As Jill points out, nobody has ever challenged the Constitutionality of the WPR, even though it is widely believed that the act is patently unconstitutional. And this is the place where it is most vulnerable to that charge.
The WPR asserts a specific interpretation of the Constitution that can actually be found nowhere in the Constitution itself. As such it arguably attempts to amend the Constitution through statute which is, of course, prohibited. No judicial review has ever been brought to bear on that interpretation... so it could very well be true. It could just as well be false.
There are many reasons why it has never been challenged. Presidents have never challenged it because in truth, the active requirements of the WPR are really not all that onerous. And Congress has never challenged it because they want to retain the requirements for Congressional consultation, review and approval. But both sides also recognize that the declaration of "Constitutional" ways for a President to commit military force is really is simply that... declaratory.
Like the preamble to the Constitution, it declares purpose and intent but contains no actual law. It requires no one to do anything, or demonstrate anything, or assert anything, or prove anything. The rest of the Resolution in contrast provides a framework and process for insuring that the Congress is engaged when military force is used. It is within that process that Congress (and no other body, to include all us interested kibitzers on CD) will determine if the commitment meets the asserted standard. And if Congress decides it does not, then they can withhold approval for an extension of that commitment beyond the 60 days.
But of course... they are not bound to even consider that issue if they don't want to. They can deny (or approve) such an extension for any reasons they want, even completely arbitrary ones. There is nothing in the act that binds the President to acting only under those three circumstances or any particularly narrow interpretation of them.
As long as the President actually engages the process described by the WPR, he is not violating the Resolution. There may later come a judgment call on the part of Congress as to whether or not the commitment was Constitutional as per these standards... but it is absolutely and exclusively their judgment call. How they define an "attack upon the United States" may not be the same way you define an "attack upon the United States."
And if they are in general satisfied that the commitment was the right thing to do, I assure you that they will judge generously.
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Is obama Violating the War Powers Act?
