In a post here last week I expressed puzzlement and potential objection about the constitutional ambiguities of the command structure of our multinational Libyan enterprise. I wasn’t concerned as much about whether our involvement requires congressional approval or not, though Lee Casey and David Rivkin, two of the right’s favorite popular legal commentators, argued that Obama does not.
Well, one of my gurus in the area of international law, Michael Glennon of Tufts University, has weighed in against Casey and Rivkin today with a letter to the Washington Post, and along the way notes the problematic nature of Obama relying on a UN resolution. In short, Mike argues, Obama can’t:
Contrary to the claim of David B. Rivkin Jr. and Lee A. Casey ["Obama's Libyan authority," op-ed, March 24], the U.N. charter and the Security Council resolution do not obligate the United States to use force in Libya; they merely authorize it. They cannot serve as a substitute for congressional approval for three reasons.
First, constitutionally, the House of Representatives cannot be cut out of the decision to go to war. Second, under the Supreme Court’s 2008 Medellin ruling, the resolution and U.N. charter are non-self-executing, meaning that they are not domestic law, and the president therefore cannot rely on any power to take care that they be faithfully executed. Third, because neither is implemented by statute, the war powers resolution (in a provision that has never been challenged) precludes inferring from them any authority to use force.
What the president constitutionally needs from Congress he cannot get from the U.N. Security Council.
Glennon is the author of several leading books in the area of international law and diplomacy, including Limits of Law, Prerogatives of Power: Interventionism after Kosovo, and Constitutional Diplomacy. Sharp-eyed readers may raise an eyebrow to see that this latter book bears a forward from William Fulbright (who I always thought deserved to be known as Half-bright); Glennon began his career as a staffer with Fulbright way back in the MIddle Ages, but has since moved steadily to the right. I suppose the turning point might have come in 1984, when he was considering taking a job with Walter Mondale’s presidential campaign. On the morning of his scheduled interview, his car wouldn’t start. Divine providence (or a typical Minnesota winter) at work. Nowadays he’s more likely to turn up in the Weekly Standard.
JOHN adds: I think Article II of the Constitution gives Obama all the authority he needs to order U.S. military forces to participate in the Libyan venture. I agree that if he lacks that authority under the Constitution, nothing the U.N. does can give it to him. Of course, constitutional authority is entirely different from prudence.
This goes back, in large part, to debates that raged during the Bush administration. At that time, liberals failed to recognize that the executive is an equal branch of government. Congress can no more take away the President’s Article II powers through legislation than the President can take away Congress’s Article I powers through executive order. Hence, the War Powers Resolution is unconstitutional, as every President from Jimmy Carter to the present has maintained. Of course, for many liberals constitutional principles have evolved–it’s a living document, after all!–now that one of their own is in the White House.