Saturday, September 3, 2011

Obama, the Constitutional Scholar-President, Abuses the Constitution in Federal Court Papers

On June 15, 2011, after certain members of Congress had attempted to require President Barack Obama to comply with his statutory and Constitutional obligations to obtain Congressional approval for his undeclared, but raging, war on Libya, and after their attempt to do so was thwarted - by Republicans who sought primarily to gain political advantage over the President's illegal acts while preserving the offending policy because they favored it, and by Democrats who favored it but wanted to avoid an up-or-down vote on this unpopular adventure, ten members of Congress filed a Federal lawsuit seeking to impose compliance. Entitled "Kucinich, et al v. Obama, et al" and brought before the US District Court for the District of Columbia under index # 1:11-cv-01096-RBW, the Plaintiffs sought, among other things, "..an order declaring that the operations in Libya constitute a war for purposes of (US Constitution) Article I and, as such, are unconstitutional absent a declaration of war from Congress..." and "...injunctive relief to end the violations alleged above, including but not limited to an order to suspendmilitary operations in Libya absent a declaration of war from Congress..."

In reply, on or about August 19, 2011 - exactly five months to the day after the bombing campaign and thus, hostilities, officially began, and almost two months to the day after the deadline for Congressional approval under the most generous (to the President's position) reading of the War Powers Act had lapsed, the Administration submitted in reply a Motion for Summary Judgment (Motion to Dismiss) seeking to set aside the suit without trial.

In their motion, the Defendants Barack Obama, President of the United States, and Robert Gates, Secretary of Defense, argued the following:

The Constitution Commits the War Powers to the Political Branches

The first four claims of plaintiffs’ Complaint challenge the President’s authority to initiate “military actions” in the absence of the consent of Congress. E.g. Compl. ¶ 170. In so doing, plaintiffs would have this Court hold that the current involvement of the United States in Libya constitutes “a ‘war’ for purposes of Article I” and that “the Executive Branch is . . .required to seek congressional approval for such military operations.” Id. ¶¶ 169, 170, at 35.

The relief plaintiffs request as a result of such a finding includes “an order to suspend military operations in Libya absent a declaration of war from Congress.” Id. at 36.

Thus, all of plaintiffs’ war powers claims “share one common denominator: the Constitution’s allocation of war powers among the executive and legislative branches”:

If the court were to determine whether the President’s deployment to date violates the War Powers Clause . . . or whether the President’s deployment order violates the War Powers Resolution, the court would have to determine precisely what allocation of war power the text of the Constitution makes to the executive and legislative branches. Ange, 752 F. Supp. at 512. The resolution of such questions directly impacts powers that are textually committed to the political branches, as plaintiffs would have this Court define the outer limits of the President’s authority as Commander-in-Chief and Chief Executive and of the Legislature’s power to constrain such authority through its ability to declare “war.” See id. at 514 (“In the present case, there is an explicit textual commitment of the war powers not to one of the political branches, but to both.”); see also New Jersey Peace Action, 2009 WL 1416041, *8 (“[T]he Constitution commits the entire foreign policy power of this country to the executive and legislative branches.”) (internal quotation omitted).

These are not questions that the judiciary is equipped to resolve. Rather, “[t]he powers granted to both branches . . . enable those branches to resolve the dispute themselves.” Ange, 752 F. Supp. at 514; see also New Jersey Peace Action, 2009 WL 1416041, *8 (“The two branches share the broad array of war powers, and the Constitution allows them to work out disputes themselves.”). “Meddling by the judicial branch in determining the allocation of constitutional powers where the text of the Constitution appears ambiguous as to the allocation of those powers ‘extends judicial power beyond the limits inherent in the constitutional scheme for dividing federal power.’” Ange, 752 F. Supp. at 514 (quoting Riegle v. Fed. Open Mkt. Comm., 656 F.2d 873, 881 (D.C. Cir. 1981)); see also New Jersey Peace Action, 2009 WL 1416041, *8 (“[T]he distinction between a declaration of war and a cooperative action by the legislative and executive with respect to military activities in foreign countries is the very essence of what is meant by a political question.”) (internal quotation omitted).

In other words, the President claims that, if he should decide that his actions - the conduct of a war which is obvious to everyone else as such - is NOT war, but something else, the Court has no power to enforce the Constitution or the War Powers Act, since, they claim, the Court cannot offer a different characterization of the acts being committed from that offered by the President.