Obtuse Observer

March 23, 2011

Why Kucinich is Wrong About Obama

Dennis Kucinich has objected furiously to President Obama’s decision to order air strikes in Libya.  Depending on what source you believe Kucinich regards this order as an impeachable offense or one warrant investigation into same.  He’s wrong.  But at least he’s consistent.  It got to be old hat listening to him screaming about impeaching President Bush and Vice President Cheney.  On December 20, 2007 candidate Obama said this about the authority to authorize a military attack: 

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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

Obama was also wrong.  It’ll be interesting to see if he addresses the flop directly by saying he changed his mind (which I’d respect frankly) or if he would argue that the order meets the relevant criteria in his comment or if he will simply demur.

The President is the Commander-in-Chief of all of our military forces.  He needs no authorization from Congress to order an attack.  However, it is standard protocol and in my opinion a proper thing to do.  Few attacks are ordered on such short notice that the leadership of both parties in each house cannot be consulted prior to issuing the order but there is no constitutional requirement for it.  While only Congress may declare war, war and attacks are not one and the same.  The War Powers Resolution of 1973 attempts to limit this presidential authority.  This is a very controversial law that neither side has tested for fear of losing and they have continued on as if the Resolution does not exist.  For my part I think it is unlikely that an act of Congress can limit an Article II power. 

The history of Presidents using force without Congress declaring war is extensive.  This document contains 33 pages of military engagements from 1798 – 2009; eleven of which were pursuant to a declaration of war.  On a case by case basis these attacks were supported or opposed by Congress though they overwhelmingly supported them.  While it is unlikely that support would be unanimous funding the President’s war budget cannot be regarded as anything other than support (begrudging or not).  This legislator/executive relationship has a long history in Anglo-American constitutional jurisprudence.  Just by way of example; Parliament tired of funding Charles I’s war efforts and cut him off.  Charles found a 400 year old Norman ship tax that permitted a direct levy payable to the Crown.  He skirted Parliament but that they had the authority to cut him off and that he did not need their approval for military attacks was not in dispute.  The Framers surely were aware of examples like this (and many others) and as our law is an extension of theirs the counter-balance was established the same way here.  Congress holds a very powerful check – the power of the purse.  They simply need to use it.

November 16, 2010

Two Edwards and a Charles Were in a Boat

Once upon a time there was an Edward.  Edward was a King and he wanted some boats.  Edward fought many wars and wars can be very expensive.  At this point in the development of England’s constitutional monarchy Commons had emerged as the only body that could issue bills for the collection of taxes.  As such, English kings relied on Commons to finance their wars.  During the reign of Edward I and again during the reign of his grandson Edward III a statute was issued which obligated coastal towns to provide the Crown with either a number of ships or their equivalent value to fund and supply a navy used to protect those towns, ports and coasts during times of war. 

Let us skip ahead 350 years to Charles I.  He’s the guy with the pointy beard.  Charles had a poor relationship with Parliament and, as noted, only Commons has the power to tax.  No taxes, no money, no money no way for Charles to pay for a war and Parliament wasn’t going to solve his cash flow problem for him.  In an effort to circumvent Commons Charles dismissed Parliament and began reviving long abandoned feudal obligations in order to raise money.  Amongst these resuscitated obligations was the ship obligation.  Charles now attempted to collect this tax not only in peace time but from non-coastal cities.  

As one might imagine, the people of England (Scotland, Ireland and Wales too) were not happy about this.  Not only was the King taking money out of their pockets but in their view he was using archaic statutes and customs in novel ways to avoid what had been established as a check on monarchical power to wage war.  Long story short, England sank into Civil War, Oliver Cromwell emerged as Lord Protector and Charles lost his head to the ax.

Despite what many may think of Niccolò Machiavelli we find the subject of checks and balances explored in his Discourses on Livy.  

John Locke, whose father served as a cavalry captain for the Parliamentary forces during the war, was seventeen when Charles was executed.  It is easy to presume these events played an important role in his life and in his political philosophy.  

Our framers, educated men that they were, would have been familiar with the history of England, the development of its constitution, the writings of Locke, Machiavelli and many others.  

This is important to you and me because James Madison borrowed from these writers and his understanding of history when he designed our government.  He designed a government with checks and balances but he did not do so out of whole cloth.  Amongst those checks on executive power (analogous to the king) was the power of the purse residing in the legislative branch of government (analogous to Parliament).  Even further, as in Commons, spending bills in the United States must arise from the House of Representatives per Art. 1 § 7 cl. 2 of the Constitution.  The power to declare or rescind war does not check or compel the executive to either engage in war nor to discontinue it. The historical development and the political philosophy that built our government as expressed in our constitution provides Congress a more powerful check on executive power; the power of the purse.  Over the past seven hundred years of Anglo-American Constitutional government it has served its purpose well despite those who are unaware of its existence, purpose or effectiveness.

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