John Yoo and President Obama

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Once upon a time, John Yoo, legal scholar and former official of the Justice Department under President George W. Bush, wrote a memo.

Well, he wrote several memos. Most of them were uncontroversial. But some of them did not escape notice by opponents of the Bush administration's policies, as Yoo basically said that Bush had, from the Constitution, whatever authority he wished to have to defend the nation, and Congress was incapable of limiting this authority by statute.

Most scholars and citizens, on all sides of the political fence, think that's silly. The Constitution explicitly gives Congress the power to limit the President in most matters, especially those pertaining to the use of the military. The Constitution says nothing about a "shift" to the executive branch during a time of war: and indeed, it gives Congress the sole authority to determine when we are in a time of war.

Apparently Mr. Yoo now works for the Obama administration, because it would take exceptionally novel thinking such as Yoo's to come up with the notion that when the War Powers Resolution says the President may only "introduce United States Armed Forces into hostilities" under certain circumstances -- none of which exists in Libya -- it only limits the use of sending actual soldiers into hostilities, not the use of the armed forces generally. Even though that's what it says.

(Oh, and by the way, everyone who says the War Powers Resolution doesn't require the President to get prior authorization to go into Libya is wrong. That would only be true if Libya consituted a "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." Absent that, the President needs a declaration or war, or some other statutory authorization, from Congress. The 60-day requirement presumes that the initial requirement for the use of force was met.)

Ignore the words of the law, says Senate Majority Leader Harry Reid: that's not what the people who wrote the resolution had in mind. And besides, this is going to "be over before you know it" and everyone supports it. But if everyone supports it, why invent such an obviously controversial interpretation of the War Powers Resolution instead of just complying with it? It's, at worst, not much more difficult to comply with than it is to fight with.

There's only two reasonable possibilities: either Obama simply wants to defend what he sees as the legitimate powers of the President whether he needs to or not, or he fears what will happen if he complies with the War Powers Resolution.

The former, while perhaps noble, isn't likely here. Obama and his people certainly have never been big believers in broad executive power, though, granted, that changed when he took office. But this sort of defense of executive power usually comes from presidents who want to protect that power for those presidents that follow, and there's no reason to think Obama's very interested in that.

Worse, however, it is even less likely that Obama sees this as a legitimate use of executive power: even if he believes, as many do, that the War Powers Resolution is unconstiutional and needs not be complied with in the first place, the way to fight that in terms of defending executive power is to actually make that case, not to invent a ridiculous legal argument that literally means the President can launch an unprovoked nuclear attack against Canada without congressional approval, as long as there's no American soldiers actually in Canada.

So no, Obama doesn't believe this is a philosophically necessary case to make. That leaves us with believing he fears the result of bringing this to Congress. The question is: why? I leave that to your imagination.

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<pudge/*> (pronounced "PudgeGlob") is thousands of posts over many years by Pudge.

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

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This page contains a single entry by pudge published on June 21, 2011 6:43 AM.

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