A Post Every Workday
March 2017 M T W T F S S « Oct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31
Top TopicsArticle I, Section 8 Article V Book Reviews Books and Reading Business Abroad Characteristics of Lawyers Civil Rights Constitutional Law Criminal Law Democratic Politics drafting Education Reform Elections Entitlement Reform First Amendment Fiscal Reform Fourth Amendment funny funny case names Government healthcare reform History and People Immigration In Ius Voco Spurius International Interest Judicial Activism Law Practice Tips Law School Leaders Legal Profession Legal Research legal writing Litigation News Round Up Nothing to do with the law Political Thought Politics Privacy Questionable Laws and Lawmakers Republican Politics Restaurant Reviews SCOTUS Second Amendment Sixth Amendment Tech and IP The Common Law The Economy Trial by Jury Uncategorized Utah Legislature
Most mentioned tags:2012 Arizona Barack Obama Books California Church of Jesus Christ of Latter-day Saints congress constitution Democratic Economics Education Elena Kagan entitlement reform Facebook Federal government of the United States First Amendment Florida food Fundamentalist Church of Jesus Christ of Latter Day Saints funny George W. Bush Google Government History human rights Humor immigration In Ius Voco Spurius it's the economy stupid James Madison Jim Matheson law law firm Law Practice Tips lawsuit lawyer legal writing Medicare Mitt Romney New York Times Obama Administration politics Polygamy postaday2011 President of the United States privacy Republican Republicans Restaurant Review Restaurant Reviews Restaurants I Like Restaurants I like less Salt Lake City Salt Lake City Eats Salt Lake Tribune Same-sex marriage Scalia SCOTUS Social Security Supreme Court Supreme Court of the United States Texas transparency twilight Twitter United States United States Congress United States Constitution United States Supreme Court Utah Utah State Legislature Wall Street Journal Warren Jeffs White House xkcd
Category Archives: Article I, Section 8
It’s the American way. Got a problem? Take it to court.
Even if that problem is military action in Libya.
While Rep. Boehner is taking a more diplomatic tact by sending a letter to President Obama seeking clarification on Libya, others have had enough and are challenging him in federal court.
This is an action for injunctive and declaratory relief. In addition to challenging the circumvention of express constitutional language, it will also challenge arguments that no one (including members of Congress) has “standing” to submit this question to judicial review. These members will ask the federal district court for review of the constitutional question and for recognition that the Constitution must allow for judicial review of claims of undeclared wars under Article I.
The Congressional members in the suit are from both parties and include Representatives Roscoe Bartlett (R., Md); Dan Burton (R., Ind.); Mike Capuano (D., Mass.); Howard Coble (R., N.C.); John Conyers (D., Mich.); John J. Duncan (R., Tenn.); Tim Johnson (R., Ill.); Walter Jones (R., N.C.); Dennis Kucinich (D., Ohio); and Ron Paul (R., Tx).
- Boehner’s Libya Warning: White House Responds (abcnews.go.com)
- Members of Congress Challenge Libyan War in Federal Court (jonathanturley.org)
- Lawmakers sue President Obama over Libya (atlasshrugs2000.typepad.com)
In case you’ve forgotten, we are still bombing Libya.
Yesterday, Rep. John Boehner sent a letter to President Obama reminding him that the time has arrived–legally speaking–to obtain Congressional approval for further military action in the North African country.
Five days from now, our country will reach the 90-day mark from the notification to Congress regarding the commencement of the military operation in Libya, which began on March 18, 2011. On June 3, 2011, the House passed a resolution which, among other provisions, made clear that the Administration has not asked for, nor received, Congressional authorization of the mission in Libya. Therefore, 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.
- Boehner Warns Obama That Libya Will Violate War Powers (thedaleygator.wordpress.com)
- Boehner Accuses Obama of War Powers Violation (jonathanturley.org)
- Speaker John Boehner warns the Obama administration – The State Column (news.google.com)
Immigration is one of those issues that never seems to go away. While almost every policy can be debated, either passionately or with blithe calm, immigration seems to evoke a passionate and even angry response from people who are, otherwise, level-headed and even-tempered. Continue reading
We’ve been at war with Libya for about a week. The question here is not whether we should be at war with Libya, but rather, does the President have the right to take us to war with Libya absent a provocation against the United States?
Giving the power to go to war to Congress, the U.S. Constitution states under Article I, section 8 that “Congress shall have the power … to declare war…” While the President is the Commander-in-Chief, the Constitution does not give him the right to use the armed forces at will. Does that, as CATO scholar John Samples and others have asked, make the acts of war in Libya unconstitutional?
Some members of Congress think so. Rep. Scott Ringell, a freshman from Virginia, said that the Libya hostilities “should trigger a debate within Congress and [among] the American people about proper interpretation and application of [the] Constitution. […]” Some Democrats have spoken out questioning the validity of the action. In the past, Senators Obama and Biden both said the president lacks the authority to do what President Obama has done.
Kind of reminds me of the old saying that “[w]here you stand on an issue depends on where you sit.” Now that he’s in the Oval Office, and after pressure to “do something,” the Barack Obama the President’s position is the opposite of Barack Obama the Senator from Illinois and candidate for President. Same for the Veep.
Flip-flops aside, does the President have the right bomb Libya? Does the Constitution support his unilateral action against Libya without the consent of Congress?
Perhaps Vice-President Biden can offer the President some guidance on the topic. As Samples notes, Biden has spoken on the original meaning of Art.1, Section 8 of the Constitution before:
Vice President (then Senator) Joseph Biden recalled that meaning in a speech on the Senate floor on July 30, 1998. He noted that the original draft of the Constitution would have empowered Congress to “make war.” James Madison and Elbridge Gerry moved that the language be changed to “declare war” so that the president would have the power “to repel sudden attacks.” Biden pointed out that only one framer, Pierce Butler of South Carolina, thought the president should have the power to initiate war.
Biden concluded that under the Constitution, the president could not use force without prior authorization unless it was necessary to “repel a sudden attack.” Presidential candidate Barack Obama agreed in 2007: “the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”
In the opinion of the Veep, then, the President is acting outside of his Constitutional powers. Biden went on:
The rationale for vesting the power to launch war in Congress was simple. The Framers’ views were dominated by their experience with the British King, who had unfettered power to start wars. Such powers the Framers were determined to deny the President.
Don’t for a minute think that it is only the conservatives in Congress that are questioning the President’s authority, either. Rick Warnick questions the rationale, too.
And so, once again America has attacked an oil-rich Arab country. This time by order of a Democratic commander-in-chief. Next time somebody tells me, “Elections have consequences,” I think I’ll ask for proof. When you look at it substantively, there is just too much bipartisanship in Washington.
It’s not just bipartisanship, Rick; it’s corruption. Power corrupts, on both sides of the aisle. All too often, that has nothing to do with the party, and everything to do with the system. As long as the White House is held by an individual more interested in “doing something” than in “doing the right thing,” then we will have the kind of lawless and dangerous actions that we’re seeing now in Libya.
Congress has to step up to the President if we’re to see a check to his little war in Libya. But I’m not optimistic. Pigs will fly before we see leadership necessary out of the House or Senate. While there have been a few speeches criticizing or condemning the action, we are unlikely to see anything more. The President has little to lose from Congress, and he knows that Congress will fold if backed against the wall.
- The Constitution and Libya (opiniojuris.org)
- Obama Does an End Run Around Congress and the Constitution to Hit Libya, Where’s the Anti-War Movement? (sfcmac.wordpress.com)
- Biden Flip Flop – Could President could be Impeached over Libya? Let’s ask Biden (ironmill.wordpress.com)
- Does Obama’s War on Libya Violate the Constitution? (reason.com)