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04.02.11

Obama's Imperial War in Libya Subverts the Constitution

What if President Obama raised taxes without congressional approval? It sounds preposterous, yet U.S. presidents now routinely wage war on their own—and in Libya, Obama isn’t even pretending Gaddafi poses a threat to us.

Suppose President Obama announced that, in order to protect the nation while carrying out his constitutional duties as commander in chief, he was issuing an executive order restoring federal income tax rates to their Clinton-era levels. Suppose he justified this action by referring to the powers the Constitution supposedly vested in him to wage war on his own initiative. Suppose he argued that, since the Constitution grants him this power, it would be absurd to claim that it denied him the necessary concurrent power to raise revenue so that he might fulfill his constitutional responsibilities.

I suspect most lawyers and law professors, although perhaps not the indefatigable professor John Yoo, would consider such an argument preposterous on its face. After all, the Constitution specifically grants Congress the power to "lay and collect taxes." Only Congress has the constitutional authority to impose taxes, an authority it has exercised by enacting the Internal Revenue Code. The president's role in the matter is limited to executing that law faithfully, proposing changes to it, and vetoing proposed changes of which he disapproves.

All this is American Government 101. Yet when it comes to waging war, American Government 101 has, since the middle of the 20th century, been replaced gradually by American Government, Special Roman Imperial Edition. Our latest splendid little war is the most striking example of this trend to date.

For Obama and Clinton, military adventures in foreign lands are not wars if one’s intentions are sufficiently pure: then they become humanitarian aid delivered via Cruise missiles.

On Wednesday, Secretary of State Hillary Clinton deigned to inform Congress that, while it remained free to pass whatever resolutions it liked regarding the Libyan war, any such resolutions would be ignored by President Obama. Clinton also made clear that the administration had no intention of abiding by the provisions of the War Powers Resolution, the law Congress enacted, over President Nixon's veto, in 1973, that confirms presidents have the power to respond to genuine military emergencies without first getting congressional authorization.

Consider what a complete inversion of the constitutional order Clinton's remarks represent. The Constitution grants Congress the exclusive power to take America to war, every bit as unambiguously as it grants Congress the exclusive power to levy taxes. Following in the footsteps of every president since Truman, Obama seems to be completing a reversal of the American constitutional system, one that now has reached the point at which presidents claim, in the words of Professor Yoo, that Congress lacks the power to "place any limits on the president's determinations as to any [military] threat, the amount of military force to be used in response, or the method, timing, and nature of the response."

Indeed, Obama's actions in Libya go beyond the legal powers Yoo's employer, George W. Bush, claimed to possess. As overblown as the Bush administration's claims were about the threat the Taliban and Saddam Hussein posed to America, they were not as outrageous as a claim that Col. Muammar Gaddafi's ragtag dictatorship represents a military threat to the United States.

And Obama has not—at least not yet—made any such claim. Instead, he has decided to go to war for what are presented as humanitarian, rather than defensive, reasons. (The most Orwellian feature of the destruction of our constitutional order has been the campaign to call war anything but war. Apparently for liberal interventionists such as Obama and Clinton, military adventures in foreign lands are not wars if one's intentions are sufficiently pure: then they become humanitarian aid delivered via Cruise missiles.)

None of this is itself an argument against the war in Libya. Perhaps it's desirable, or even morally imperative, for Western nations in general, and America in particular, to enter another civil war in the Middle East. But the framers of the Constitution had very good reasons for making it difficult for America to go to war. They knew that even wars that begin with the best of intentions often end up being driven by the worst ones. They also knew that while war is almost never in the interest of a nation's people, it is often in the interest of a nation's rulers, who reap the political and economic benefits of war while bearing little or none of its costs. That's why they designed a system of barriers to action—which is, after all, what the rule of law is supposed to be—before politicians could send others off to kill and be killed in the name of the noble national goal of the moment.

Barack and Hillary's excellent adventure presents us with a particularly mordant irony. The endless blather from neoconservatives and liberal interventionists about how our wars will give birth to the rule of law in the Middle East ignores how those wars have led an increasingly imperial presidency to mock the most basic requirements of the rule of law in America.

Paul Campos is a professor of law at the University of Colorado at Boulder.