Category Archives: Article I, Section 8

In case you didn’t know…now you do: How laws are made.

Libya: Members of Congress Challenging Constitutionality of Military Action

(en) Libya Location (he) מיקום לוב

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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.

Is our continued military action in Libya legal? That is the question Professor Jonathon Turley, representing ten Members of Congress, is asking the court to decide.

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.

via Members of Congress Challenge Libyan War in Federal Court « JONATHAN TURLEY.

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).

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While we bomb Libya, is a violation of the War Powers Resolution on the horizon?

(en) Libya Location (he) מיקום לוב

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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.

via Boehner warns Obama that Libya will violate war powers | Susan Ferrechio | Beltway Confidential | Washington Examiner.

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Mexico files brief against Utah…federalism at issue?

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

Never mind wise: is war on Libya even constitutional?

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.