Senator Obama on the Constitution

by on March 19, 2011 at 8:31 pm in Current Affairs, Law | Permalink

‎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.

Senator Barack Obama, Dec. 20, 2007.

Hat Tip: Radley Balko.

Phill March 19, 2011 at 9:06 pm

So, under what legal framework does the US’ participation in NATO and the UN forces fall under?

Also, what’s the purpose of this snark? Do you oppose Resolution 1973?

Careless March 19, 2011 at 10:34 pm

You seem to have screwed up and posted this on MR instead of as an email to Obama

DaveyNC March 19, 2011 at 10:45 pm

I think the purpose of the snark would be to point out what a naif Senator Obama was and how easy it is for a candidate to wax poetic when he is not the one who has to make the decision to risk lives. Or not. Now that he is in command, I hope he has learned what an ass he was during the campaign when he tossed off remarks like the one quoted.

Dana March 20, 2011 at 2:28 pm

I suppose we could put everything the Republicans have said during the last 2 years in this same category?

Chris78701 March 20, 2011 at 3:40 pm

Neither side is immune to idiotic pandering.

DaveyNC March 20, 2011 at 8:35 pm

Forgive me for not setting my comment declaration to “Universal”. Because we must be fair.

Bartman March 19, 2011 at 9:23 pm

We really need some way to filter out Tabarrok’s posts.

Eli March 19, 2011 at 11:36 pm

We really need some way to filter out Bartman’s comments.

Wu March 20, 2011 at 8:12 am

Agreed. They’re not insightful, they’re usually passive aggressive, and they’re always predictable.

John March 20, 2011 at 8:24 am

Given that it’s his blog, shouldn’t you just not read his posts rather than attempt to censor him out completely? You have a very odd view on first amendment items.

Bartman March 20, 2011 at 11:42 am

John:

Good to see you channeling Sarah Palin’s “ideas” on the First Amendment. I’ll give you the clue you’re missing: I am not Congress.

And there’s also a rather large difference between censoring and filtering. One refers to not saying something. The other refers to not hearing it.

Comment filtering? I’d love it. Being able to avoid some of the gormless monotone clowns who pollute this place would make it immeasurably better.

Brian D. March 19, 2011 at 9:31 pm

Good stuff!

nostrum March 19, 2011 at 9:34 pm

This is probably the first time that the West has lived up to its longstanding rhetoric about promoting democracy, freedom and respect for human rights around the world. When Gaddafi and his loyal faction treat the ordinary people of Libya like slaves, the international community has no choice but prevent the emergence of another Rwandan style genocide in the oil rich country.

DaveyNC March 19, 2011 at 10:40 pm

@nostrum, I guess you forgot about the whole World War I and II thingies, huh?

DPTrombly March 20, 2011 at 1:24 am

World War II certainly protected democracy.

And if you think there’s going to be a Rwandan style genocide in Libya, you clearly haven’t been following the conflict. There is very, very little similarity between Rwanda and Libya. The means, methods, and context of the two conflicts are entirely different, and indeed, a Rwandan style genocide of Libya is probably impossible by virtue of geography.

John March 20, 2011 at 8:16 am

That would have been a much more powerful statement without the last 5 words.

Veridical Driver March 20, 2011 at 1:27 pm

It also helps when promoting “democracy” helps secure our oil supplies.

gcruse March 19, 2011 at 9:36 pm

So pointing out contradictions is okay, but not when they involve the left?

Wu March 20, 2011 at 8:14 am

It’s uninteresting. I learn nothing from Alex finding some way to support his prior beliefs.

anonygoat March 21, 2011 at 2:31 pm

I learned that Obama said that thing he said.

goblue March 19, 2011 at 9:43 pm

@gcruse

Pointing out contradictions is fine if you actually have some problem with the current position that contradicts the former. Do you oppose intervening with Libya with the support of many other nations? If not, then go away. If you do, then fine. But otherwise, who cares about statements made four years ago that you don’t agree with and haven’t been followed?

Phill March 19, 2011 at 9:53 pm

gcruse: There are specific legal frameworks under which the US President can authorize force. A “war” must be declared by Congress, which is why the Korean War was technically a “police action” and there was a legal dance performed in the Gulf of Tonkin Resolution.

I suspect Obama may be referring to Article One, Section Eight in his carefully calculated answer, but to interpret that sentence to apply to all uses of force is to be, well, misleadingly naive or at least historically ignorant.

My question is simple: under what frameworks can the POTUS authorize the bombing of Libya? It’s not like they are acting extra judicially. Does the US involvement in say NATO engagements require legislation? Will it just be rubber stamped retroactively?

There are many valid venues for criticizing Obama but this isn’t one of them. Again, Tabarrok, what are you trying to say exactly?

Careless March 19, 2011 at 10:41 pm

“My question is simple: under what frameworks can the POTUS authorize the bombing of Libya?”

As you’ve just read the Obama quote, you know what he claimed to believe several years ago, and that this goes against that. I do not see what your confusion could be. He lied. Ok, he was a politician and his mouth was open, so that’s to be expected, but that doesn’t mean there’s a reason to defend the man

John Farrier March 20, 2011 at 2:01 pm

Was a NATO country attacked? If not, then the fact that this is a NATO operation is irrelevant.

dirk March 19, 2011 at 9:58 pm

At least finally when engaging in mid east military conflict we have a clear objective and well defined metrics for success. For instance, oh fuck.

Sanchit Kumar March 19, 2011 at 10:09 pm

They should reword the constitution, so that to give the president the power to unilaterally reject military intervention in a situation where either popular demand or Congress demand an attack. Every time there is a perceived ‘threat’, there is always the appetite for a fight. My personal view is that he should play a devil’s advocate role – more cynical and calculating – to gauge whether it truly is worth the fight. Given the past history in Vietnam, Iraq, and Afghanistan, I think that there is certainly room for this kind of role in the military debate.

Careless March 19, 2011 at 10:44 pm

The president has pretty broad powers in how to prosecute wars once they are declared, and we’re not dealing with declared “wars” here. Obama was and is free not to do this, Bush was free not to attack Iraq and Afghanistan, etc, going back decades.

dirk March 19, 2011 at 10:09 pm

Remember how when we deposed of that evil dictator in Iraq that was the end of our military involvement there? And how oh shit.

Six Ounces March 20, 2011 at 12:25 am

I suggest you re-read the whole “mission accomplished” speech on the USS Lincoln.

Count how many times, in different ways, that Bush said there was lots of hard, dangerous work left to do.

The Join Authorization for the Use of Force in Iraq cited the Iraq Liberation Act of 1998 which authorized actions to remove Saddam Hussein AND promote a democratic replacement for his regime.

The Authorization for the Use of Force Against Terrorists also permitted the President to continue to wage war against both foreign terrorists and domestic insurgents.

Both the war and the post-war efforts were authorized by Congress.

Work on your memory.

dirk March 20, 2011 at 1:28 am

i think we’re on the same side of this issue.

Six Ounces March 20, 2011 at 1:33 am

Friendly fire. :)

It happens in war. Everyone seems to be shooting in every direction.

dirk March 19, 2011 at 10:17 pm

two words: mission creep

Bill March 19, 2011 at 10:42 pm

Agree with Tabarrok’s post. We have a political process, and more importantly a constitution, and presidential incursions–from Panama to Granada, from Libya to who knows where else–require Congressional declarations and approvals.

When is a war not a war.

When the President says it isn’t.

dirk March 19, 2011 at 11:00 pm

agreed. amazing the lack of debate before this move. we have no democratic process when it comes to attacking another nation. we debate every nuance of the dont adsk dont tell debate for decade, but when it comes to actually making war it’s a few whores in a room deciding whats good for the whoring business.

John March 20, 2011 at 8:22 am

I was under the impression that there was a limited time period that the President was granted some flexibility to function in his Commander in Chief role without Congressional approval.

The point about UN, or other treaty commitments involving military action, does raise the question of prior approval since the treaty has to be ratified by Congress.

When is a war not a war? When it’s a police action?

songar March 20, 2011 at 11:49 am

“The point about UN, or other treaty commitments involving military action, does raise the question of prior approval since the treaty has to be ratified by Congress.”
I’ve been waiting for someone to raise this issue again, and I’m anxiously awaiting–again– a response from some informed source who can detail what legislative prerogatives Congress may or may not have have ceded to the executive branch when ratifying the treaty.

Nathaniel March 20, 2011 at 6:19 pm

There is no treaty in force that can compelling te US to engage in military actions. The UNSC authorizes measures, but has no authority to compel member states. Even the much touted article 5 of the NATO treaty is commonly misunderstood. While it asserts that an attack on one is considered an attack on all, it compels members to take action “as it deems necessary.” This can include the use of force, but doesn’t mandate it.

dirk March 19, 2011 at 10:44 pm

if you believe we should be fighting in Libya for human rights reasons then shouldn’t we also be in Bahrain?

Jamie March 19, 2011 at 10:44 pm

There is a very clear framework for this, which makes perfect sense.

If we attack an oil bearing nation to which we do not have friendly ties through the various energy firms, it is about human rights.

If we fail to attack a nation with which we do have friendly terms, that’s stability.

Apply as needed. Note that this is a nonpartisan position.

Careless March 19, 2011 at 10:46 pm

That leaves our relations with a lot of countries unexplained and inexplicable.

Spencer Thomas March 20, 2011 at 8:58 am

Very good answer.

nitpicker March 19, 2011 at 11:12 pm

dirk: u said it

wophugus March 19, 2011 at 11:22 pm

Useful to remember that the first time the president engaged in military action without a declaration of war from congress was 1798. The foundational generation had to deal with this crap too.

Anyways, in this specific case, you could argue that congress ratifying the UN Charter impliedly authorizes the use of military force pursuant to chapter VII of that charter. Even if that is not the case and there is a real disagreement here between past and future Obama, I disagree with senator Obama and agree with President Obama. The situation is pressing, the congress is in recess, and the president is acting pursuant to a prior treaty signed by congress. I don’t understand a reading of the constitution that would give the president the not-explicitly-stated power to use military force in self defense but not the not-explicitly-stated power to use military force in that context. Both because it would be idle to assume that the constitution expects the president to sit on his hands when time is of the essence and because Article 2 is more about broad and ill defined grants of power than article I’s specifically enumerated powers, I think the best reading is that the commander in chief power gives him the authority to use military force in foreign affairs without the authorization of congress when time is of the essence and he isn’t clearly acting contrary to a constitutional treaty, law, or congressional resolution; provided he gets later authorization from congress as quickly as is practicable (and in this case the delay is, again, because congress is not ending its recess early to address the matter. It’s on their heads, in other words). I guess that raises the question of whether the war powers resolution is constitutional, since this action is probably contrary to it.

wophugus March 19, 2011 at 11:28 pm

I have grave doubts about getting involved in this war, incidentally, and I do acknowledge some hypocrisy between senator and president obama’s positions (unless you think you can make the argument with a straight face that congress signing the UN charter authorized this war). I am just saying that I think the president is behaving constitutionally.

GinSlinger March 20, 2011 at 10:48 am

“Useful to remember that the first time the president engaged in military action without a declaration of war from congress was 1798. The foundational generation had to deal with this crap too.”

If you are referring to the Quasi-War, you are wrong. Congress rescinded the treaty with France, then authorized the use of force to protect shipping. IIIRC, it was An Act to Further Protect the Commerce of the United States. While I do not remember th use of the word “war” in the act, it was essentially a declaration of oceanic war.

dirk March 20, 2011 at 12:14 am

invading iraq was stupid but at least there was the argument saddam posed a threat to the wider world.

invading afganistan was stupid but at least we had a genuine retaliation motive regarding some of the locals.

libya? civil war. i root for who i think r the good guys too, but it is impossible to know if good guys will end up in control. just amazing we are back into getting involved in forreihgn civil wasrs.

Rahul March 20, 2011 at 1:05 am

I like it when MR stays an economics blog and not an ideological one.

Six Ounces March 20, 2011 at 1:36 am

I always thought it was a libertarian blog, hosted by people who are also economists.

Jim March 20, 2011 at 8:52 am

Yeah, that would explain the endorsement of carbon taxes and single-payer health care. Can’t get more libertarian than that.

As for Obama’s Third War, the ultimate comment has already been made, over at Just One Minute (via Instapundit):
====
Obviously, the biggest problem with Bush was sending the military into an Arab Muslim country that hadn’t even attacked us. Among the several things that made that offensive were
* the rush to war – it was only several months after the possibility of military involvement was raised that combat operations began
* lack of United Nations sanction – only 17 relevant resolutions were ever passed before they were enforced
* lack of Congressional oversight – the President authorized the use of military force based on the flimsy pretext of a bill passed by Congress titled “Authorization of the Use of Military Force”, rather than seeking a document that had the words “declaration of war” in it; that’s every bit as bad as getting no Congressional approval at all
* obvious financial motives – clearly no one approved of the murderous dictator or sought a normal working relationship with him besides the French; at the same time, one couldn’t help but be suspicious of the fact that the population we were ostensibly protecting was located conveniently near the oil fields
* stretching our military – we were overburdened as it was, and our brave military despite its courage lacked the resources for yet another operation
* inflating our military – the only way to keep the bloodthirsty Pentagon beast fed was to give it the hordes of jobless young men who had no prospects in an economy that saw unemployment skyrocket above 4% in most states
* ignoring our generals – the decision to go to war was made by political hacks who had never worn a uniform
* inflaming the Arab Street – despite some touchy-feely talk about Islam, it was impossible for the Muslim world not to notice how the President made repeated, insistent proclamations of his Christianity, how he only ever used the military against Muslim targets, and how at the time the war started he’d kept the concentration camp at Guantanamo open for over a year
* wasting money – it was completely irresponsible to commit the military to an expensive mission when the President’s fiscal mismanagement had resulted in a budget deficit of over $150 billion in 2002

Elvin March 20, 2011 at 1:15 am

But Alex you said that the ” . . . constitution is a living document. The constitution’s meaning is not fixed . . . The constitution evolves to meet the needs of the people in the here and now.”

http://marginalrevolution.com/marginalrevolution/2011/02/the-living-constitution.html

Six Ounces March 20, 2011 at 1:37 am

Alex was being sarcastic then.

Are you?

metoo March 20, 2011 at 1:20 am

Bartman :”We really need some way to filter out Tabarrok’s posts.”

Agreed. The only thing this post achieves is a needless flame war. Polarizes the lefties and righties in case they already were not polarized enough to start with. What was Tabarrok thinking?

Sometimes I think Tyler uses Tabarrok just to remind us at intervals how much better Tyler is. I wonder, is there anybody who reads MR for Tabarrok and not for Tyler? Keep up making posts like this one and the comments section will get invaded by the likes of morons who populate Krugmans blog comments.

dirk March 20, 2011 at 1:26 am

hey, i dont comment on krugmans blog. im offended.

Rahul March 20, 2011 at 1:22 am

A foolish consistency is the hobgoblin of little minds. :)

dirk March 20, 2011 at 1:39 am

and i dont see any flame war here. just drunk me rambling on and on.

you wanna see a flame war? I’ll show u a flame war. turn on CNN. takes a POTUS to make that happen.

im apolitical, so no party lines here. in the spirit of Tyler’s link yesterday, i earned my right to comment when i stopped voting.

Grover Cleveland March 20, 2011 at 1:50 am

There was some talk of this in Congress before today mooted it: http://pileusblog.wordpress.com/2011/03/19/congress-and-the-use-of-force-in-libya/

dirk March 20, 2011 at 2:23 am

but i agree i dont like the tone of this post because the current president should be referred to as the president and not by his former title or as a halfbloodedprince or whatever else. one good thing about the american system is they will all be civilians soon enough. we stop being a civil society when we refer to the president as a halfbloodedprince and such.

Careless March 20, 2011 at 3:11 am

You’re complaining because someone would compare Senator Obama with President Obama?

dirk March 20, 2011 at 3:33 am

OK. maybe i’m being too picky.

TheLobsterMan March 20, 2011 at 3:23 am

There’s something off about calling Obama “the half-blood prince.”

dirk March 20, 2011 at 3:34 am

I agree. Check and see who that person is.

Yancey Ward March 20, 2011 at 3:23 am

So, either Senator Obama or President Obama was full of shit. Which one?

dirk March 20, 2011 at 3:38 am

All politicians are lying cocksuckers.

Andrew March 20, 2011 at 5:25 am

I’d say i pay attention to stuff in about the 99th percentile. I have no idea what we are doing and why.

Andrew March 20, 2011 at 5:29 am

Maybe there is something about the term ‘co-bloggers’ you guys don’t understand.

Flamers get shut down ricky tick here.

Andrew March 20, 2011 at 5:33 am

For example, someone called me a idiot for saying we were using hellfire missiles to kill peasants in Afghan. We are. We are all idiots for it, but it’s happening.

Now we are using a number that can be measured in 3 digits of anti-ship missiles to attack peasants in Libya. There’s no flaming here, just Obama’s own words and idiotic tactics.

If we are too wuss, and the objective is not important enough, and we are not committed enough to risk a few lives using appropriate tactics then what the hell are we doing?

Dean Sayers March 20, 2011 at 7:54 am

“We” doesn’t apply here, unless people have some false sense of control over their government (yeah, get a few hundred million together, start lobbying and then maybe they’ll be right).

Remember – watch out for “the road to serfdom.” But if someone is already a serf – just use them for cannon fodder.

E. Barandiaran March 20, 2011 at 6:21 am

Alex, Tyler and MR readers, while you ventilate your profound disagreements on the constitutionality of US intervention in Lybia, your Great Leader and First Ditherer is coming to visit Chile. Tomorrow, after some Carnival-type of visit to Rio, he will be here in Santiago for dinner. There is a some discussion about the menu. Please Tyler, tell my friend the Chilean President (remember he’s a Ph.D. Economics from Harvard) what he should be serving your President. They will be able to have a long dinner because tomorrow night there are not NCAA games scheduled.

dirk March 20, 2011 at 11:20 am

How about some decent air-conditioning in the government buildings there for a change?

Andrew March 20, 2011 at 6:40 am

E.,

Gather your firewood beforehand. He might still be in a good mood over his brackets. At least for this particular president ‘nailing that sweet sixteen’ isn’t a criminal act.

E. Barandiaran March 20, 2011 at 7:13 am

Andrew,
I have just read this
“But anyway, what I really like about Obama is that he’s gone 29-3 in his bracket picks over the first two days. You have to spend a lot of time watching college basketball to be that good.”
Wow.

dirk March 20, 2011 at 11:24 am

Nah, he mainly just picked favorites and the favorites have won. That doesn’t take any time.

dearieme March 20, 2011 at 7:36 am

The parsimonious explanation is that that International Man of Mystery, Senator Obama, was kidnapped and an alien doppelganger was inserted into the White House.

dearieme March 20, 2011 at 7:40 am

On reflection, an even more parsimonious explanation is that the International Man of Mystery is a politician.

Dean Sayers March 20, 2011 at 7:49 am

I wonder if we will end up with projections of .5-1 Million child casualties from these bombings, a decade of conflict and Albright’s reassurance that the collateral was “worth it”? That worked out ok for Iraq’s no-fly zones…

Andrew March 20, 2011 at 9:16 am

While I don’t have time to look up his brackets, let alone do my own bracket, my suspicion is that he picked brackets based on the number of votes available from each school.

Jason March 20, 2011 at 10:37 am

This whole “I hate politicians” bit is a little tired. WE GET IT….you are far wiser and morally superior to the evil, vile politicians. On to the next…

Andrew March 20, 2011 at 11:01 am

I hope you aren’t talking about my comments. I do hate politicians, and it is they who are getting really old, and it is other people who don’t get it.

Everything I’ve said about these things is specific and pointed. We are blowing our wads on tinhorns. We learned all the wrong lessons from our previous military unpreparedness.

Andrew March 20, 2011 at 11:05 am

And yes, apparently they are unwise and opportunistic weasels which may leave them just shy of evil. First, that is not to elevate myself. That’s a truly a scary thought. Second, I didn’t invent the principles, I just heed great people. It’s not me who is whipping out a gigantic set of brass hubris.

BHO March 20, 2011 at 11:12 am

Guys,

I said actual OR imminent. And notice I did not specify which ‘nation’.

Barry

ad*m March 20, 2011 at 12:42 pm

@all

A thank you to all commenters here. I just realized that I stopped reading MR for the Tabarrok and Cowen – who, on occasion, can be as bad – posts a long time ago, and only keep returning because of the comments by you guys. I even enjoy Bill’s comments… ; )

Rain March 20, 2011 at 1:01 pm

How is what Obama is doing unilateral? I thought there was a UN agreement, multiple countries, etc. “The POTUS cannot unilaterally”… I’m assuming any bilateral (or higher order) agreement would not involve the consent of the bombee, so he might be covered by the existing arrangement.

That said, the president has always seemed to have “hidden” powers when it comes to war, and it’s fair criticism of Obama, though Bush was far worse.

Stuart March 20, 2011 at 2:23 pm

If you continue reading Obama’s answer it is clear he is talking about the President vis a vis Congress.

“History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.”

Andrew March 20, 2011 at 1:14 pm

Rain,

I certainly don’t consider Obama consulting the French to qualify as ‘non-unilateral.’ Although you may be right that Obama does consider subordinating our military sovereignty to international interests to be the next best thing to Sportscenter.

Andrew March 20, 2011 at 1:17 pm

In fact, it never even occurred to me that the quote might not be talking about executive privilege at all, but now that you mention it you are probably right. I always wondered if it was GW not bending over for the international community was what libs really hated about his wars. Apropo that we hold hands with the Frenchies on this one.

Nathan W March 20, 2011 at 1:48 pm

OK, but I’m not sure that I’d consider a UN sanctioned intervention as unilateral.

It may be from the domestic perspective, but definitely not so from the international perspective.

Scrutineer March 20, 2011 at 2:33 pm

“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 talking about constitutional requirements, not the number of countries it takes to turn “unilateral” into “multilateral.” UN approval ≠ congressional authorization. The “international perspective” is irrelevant.

Andrew March 20, 2011 at 1:58 pm

I think you put your finger on it. That is the difference. I think if the UN suddenly released a memo that it is good for people to suck their own dicks moments later you’d hear loud thumps from heads hitting about half the desks in the country.

Andrew March 20, 2011 at 2:20 pm

Referring to The Constitution if he’s actually talking about an internationalist circle-jerk rapes logic. Which is why I’m now certain this POV is correct.

DK March 20, 2011 at 5:46 pm

With Kosovo, they at least saw it fit to lie to the public about it (“over 100,000 Kosovars might be dead”). Not in this case. Brazen disregard for the taxpaying dolts is getting worse.

TGGP March 20, 2011 at 10:37 pm

My main complaint about Alex is that he is a (relative) slacker when it comes to posting here. Pick up the pace! What are we (not) paying you for?

For those who don’t want to read him:
http://marginalrevolution.com/marginalrevolution/author/tyler-cowen
I know the Volokh Conspiracy has an “?ignore=” option, I don’t know if that’s the case here.

AnotherPhil March 21, 2011 at 12:20 am

So Alex, I guess you are experiencing post-purchase regret?

Next time don’t vote for vacant chants like “hope and change”.

a March 21, 2011 at 4:37 am

I, for one, am disapppointed that Obama did not ask for Congressional approval. It would have been a fine precedent.

Doc Merlin March 21, 2011 at 7:58 am

Just remember, Bush asked and was given it.

southpole March 21, 2011 at 10:44 am

I’m just wondering why? Set aside the how’s and ask why. Their are a number of bloody conflicts involving genocidal regimes or maniacs around the globe but this one suddenly seems to draw quick and decisive western involvement. I just don’t like being told that we have no choice as Qaddafi threatens the lives of his own innocent civilians. This type of situation exists and has existed for a long time in many African countries and nobody bats an eye.

Comments on this entry are closed.

Previous post:

Next post: