We have been discussing the growing concerns over President Barack Obama’s series of unilateral actions in ordering agencies not to enforce law, effectively rewriting laws, and moving hundreds of millions of dollars from appropriated purposes to areas of his choosing. One of the greatest concerns has been his unchecked authority asserted in the national security area. I previously represented members of Congress in challenging Obama’s intervention in the Libyan civil war without a declaration from Congress. In the case, President Obama insisted that he alone determines what is a war and therefore when he needs a declaration. Since the court would not recognize standing to challenge the war, it left Obama free to engage in war operations in any country of his choosing. As with his approach in Libya, Syria and other combat operations, President Obama declared this week that he does not need any approval or even consultation with Congress if he decides to commit us again to war again in Iraq.
As in the past, Democrats are not just silent but actually applauding the circumvention of Congress — a precedent that will likely come back to haunt them if the next president is a Republican. House Democratic leader Nancy Pelosi of California said that the President does not need congressional approval to do go back into combat and then matter-of-factly that in their brief conversation, the President “did not give us an array of actions he was planning to take.”
While we do not expect combat troops on the ground, the White House appears to be exploring an intervention with air power and possible special forces. The White House simply told Congress and the public to trust their uber president: “Any action that he might contemplate when it comes to … the use of military force will be to deal with the immediate and medium-term threat posed by ISIL.”
I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. Obama has repeatedly suspended provisions of the health care law and made unilateral changes that were previously rejected by Congress. He has also moved hundreds of millions from one part of the Act to other parts without congressional approval. Now, his administration is reportedly changing key provisions of the ACA to potentially make billions of dollars available to the insurance industry in a move that was never debated, let alone approved, by the legislative branch. I just ran another column this month listing such incidents of executive over-reach that ideally would have included this potentially huge commitment under Obama’s claimed discretionary authority.
This week I debated the head of the Brennan Center at New York University on Obama’s unilateral actions and the dangers that they pose on the PBS program Newshour. While my co-guest repeatedly insisted that he is “not troubled” by the concentration of authority in the presidency, I again believe that Democrats will long regret that they support the rise of this uber presidency:
http://learning-curve.blogspot.com/2014/06/the-fall-of-mosul.html
The issue of the President’s legal authority to deploy the military to Iraq under current circumstances, absent a new statutory authority, presents interesting legal questions.
President Clinton deployed the military to Iraq throughout his presidency with the statutory authority of P.L. 102-1 (1991). President Bush deployed the military to Iraq with the redundant statutory authority of P.L. 102-1 and P.L. 107-243 (2002). Because a statutory authority is equivalent to a declaration of war under the War Powers Act, within the constitutional scope, there is no domestic legal controversy over U.S. military actions with Iraq from 1991 to 2011.
The failure to negotiate a new Status of Forces Agreement with Iraq that was effective past 2011 was cited as the main reason for the withdrawal of U.S. Forces from Iraq. However, did the departure of U.S. forces from Iraq in 2011 coincide with an actual severing of all the relevant, or at least plausible, statutory authorities for deploying the military to Iraq? Or was some legal authority retained, perhaps applicable in the event of an emergency such as the current crisis, despite the physical removal of U.S. forces from Iraq in 2011? I don’t know; I hadn’t thought about the post-OIF legality of deploying the military to Iraq without a new statutory authorization.
Note that the United States has a Strategic Framework Agreement with Iraq.
The first question is whether P.L. 102-1 and/or P.L. 107-243 are still live. Since they authorized the President to enforce the UNSC resolutions relevant to Iraq, a related question is whether the UNSC resolutions related to the security of Iraq are still live. For example, UNSC Res 1511 (2003) “authorizes a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq”.
The second question is whether P.L. 107-40 (2001) or other counter-terror law cover the situation in Iraq “in order to prevent any future acts of international terrorism” (P.L. 107-40), especially if a plausible ‘organizational’ link can be drawn between ISIS and al Qaeda.
The third question is whether the U.S. has an operative Congressionally approved multi- or bilateral security agreement (treaty) that covers Iraq. For example, President Clinton cited to the NATO treaty when he skipped Congress for the Balkans intervention. As far as I know, we only have the Strategic Framework Agreement with Iraq, which only states a commitment to “close cooperation” on defense and security issues. That does not by itself rise to a treaty.
The fourth question is whether there is a statutory authority linked with a security agreement under international law. For example, President Obama claimed the ‘Responsibility to Protect’ justification was authorized by the general U.S. agreement with the United Nations covenant when he skipped Congress for the Libya intervention. I thought R2P was a weak stand-alone legal basis in domestic and international law to deploy the military even before Obama severely stretched an already controversial novel application of R2P in Libya. Nonetheless, it is a precedent.
The question of statutory authorization may be rendered moot if a U.S. entity is attacked in Iraq. According to 50 USC 1541 (1973) of the War Powers Act, other than by Congressional declaration of war or statutory authorization, the military can also be deployed by the President “pursuant to … a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
Fix: … in fact, China does come after America’s
goalcoal.Max-1,
The law and policy of our 1991-2003 Iraq enforcement speak for themselves, as do the law and policy of our 2003-2011 post-war peace operations in Iraq.
Your hypothetical fails on the first part because, in fact, China does come after America’s goal. And America invites China to our coal. America sells coal to the Chinese. The Chinese buy coal from America.
Buying and selling is how it works for oil, too. Operation Iraqi Freedom didn’t happen in the 1930s. There is a modern process for acquiring foreign oil that America subscribes to. If we want Iraq’s oil, we buy it.
Your hypothetical presupposes that Saddam was keeping us from something of his that we desired, when in fact, the opposite is true. Saddam wanted to sell us his oil, while we didn’t particularly desire Iraq’s oil. We can buy oil from other suppliers; we are a supplier. In fact, Saddam tried his best to sell America – and the world – his oil during the period that Iraq was under UN sanction. Saddam’s challenge was overcoming the fact that America desired Iraq’s oil less than we desired Saddam’s compliance with Iraq’s ceasefire obligations. Saddam wasn’t sanctioning himself from selling oil to America; America was keeping America from Iraq’s oil.
In fact, a major reason we were moved to resolve the Saddam problem in 2002 was that Saddam had figured out how to beat the sanctions, eg, the Oil for Food scandal, and Saddam was using the revenue from illicit oil sales for weapons procurement.
Excerpts from the Duelfer Report:
On the second part, see UNSC Res 1511. The US threatened Iraq only until the regime change was achieved. Thereafter, Iraq was in the protective custody of the US-led “multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq”. From the point of regime change, the US mission in Iraq was to defend Iraq, protect the Iraqi people, and facilitate Iraq’s transition to its post-Saddam state.
The whole deal in the Middle East is a dog and pony show. The oil speculators use the unrest as an excuse to drive up the price of oil. Speculation is more responsible for the high cost of oil than subsidies. Big Fi, as in Finance, uses their politicians, who happen to be our elected officials, to respond to the unrest with calls for war. They send in a some troops – never enough to restore peace and stability – and the price of gas shoots up.
It’s no coincidence. It’s proof of the grand conspiracy that has become our oligarchical government. Money in politics has allowed this to happen. Period.
When money is speech, then those with money will always speak loudest, and those without will continue to fight in the wars created for profits.
DavidM: A bad leader in this case is not a failed leader. bush was a failure but not a failed leader; Obama may be a failure as well.
“Democrats won’t get rid of oil subsidies”? Give me a break. This is another example of your gymnastic exercises in logic. Tax bills originate in the House of Representatives – controlled by Republicans. Sure there are Democratic menbers who support the subsidies, but the Republicans are maintaining the status quo
RTC wrote: “Tax bills originate in the House of Representatives – controlled by Republicans.”
I’m not excusing Republicans on this, but Democrats have indeed voted against bills passed by the House that would have stopped oil subsidies. I guess you didn’t read the article to which I had linked that explained very logically how that happens.
There you go. Some folks here think that we have these documents that somehow have legal authority everywhere, when they really only have authority that we demand through coercion. It appears from the End of Year Survey, that I had seen before sums up the attitude of the rest of world. But, sooner or later, when the dollar is dropped as the reserve currency, we’ll have hard decisions to make… more war, or Obamacare, or bridges… there won’t be anymore deficit spending like there is now.
END OF YEAR 2013: Giving the World a Voice for the 37th time
http://www.wingia.com/en/services/end_of_year_survey/7/
Eric,
I appreciate your responses to Iraq and how you see it. Everyone has their opinions… Right?
However, I’m missing any response to my query:
It’s a hypothetical that deserves reflection, not deflection.
Saucy, That joke just became part of my rotation!
My cat stole Minnie Mouse’s costume and then ate her while Minnie was blissfully eating her cheese, that serves that trampy mouse right.
http://marylandpetphotos.com/wp-content/uploads/2010/11/4.jpg
Annie – there has never been any evidence that Minnie has been anything but faithful to Mickey.
Paul wrote “you owe me a new keyboard”
Did someone blow milk out of their nose?
saucy – coffee
Part 5:
P.P.S. It might help if you add “Felix Salmon” to the search keywords of the first:
-Reuters: “Jobs: The summer’s over”
-me: “American schadenfreude and the Senate Gang of Eight’s fraudulent immigration reform bill S.744”
-me: “Debt follies, part 1”
-me: “Debt follies, part 2”
-me: “Senator Marco Rubio confuses capitalism with national interest”
swathmoremom–Obama is weak and if you fail to see that after 6 years then you’re weak minded. On the unemployment rate I guess you consider 3 out of 50 states good–what a daffy statement to make. No Obama hasn’t listened to Cheney, he only like to listen to himself. He’s only good at fanning the flame of wars (Libya, Egygt, Bengashi, and now Iraq again). Mark my words, we’ll be back on the ground in Iraq soon.
Let’s face it, those who voted for Obama, voted on an emotional level–wanting the war to end, wanting a man of color in the WH–wanting youth over maturity and wisdom, etc. Well the change he promised we all got. Now it’s time to get rid of this blundering, incompetent, arrogant, egotistical Marxist.
Annie, I would want to resolve the issue with Warren. Many people here have made up their minds based on their political status. That said, it’s much less severe than ‘W’ invading Iraq on false pretenses or Bill Clinton cheating on his wife multiple times.
Olympia Snowe would be my favorite, but maybe she has skeletons in her closet as well.
“How ethical is Minnie Mouse? I hear she trades favors for cheese.”
Okay, you asked for it.
Q: Why was Snow White fired from Disneyland?
A: She sat on Pinocchio’s face and yelled: “Lie! Tell the truth! Lie! Tell the truth!”
saucy – you owe me a new keyboard. 😀
Nick Spinelli: “Eric, Thanks much. If I haven’t said so already, you are a welcomed addition here. How did you find this blog?”
Thanks.
Googling the 5 Taliban commanders release for Bergdahl exchange.
leej, Sorry. I thought I gave you my email on your blog awhile back. Anyway, it’s ndspinelli@hotmail.com.
Part 4:
Fourth, the Labor Force Participation Rate is a much better indicator than the generally used (and generally useless) U-3. Look at this BLS graph (http://data.bls.gov/timeseries/LNS11300000) and you will realize that the LFPR has dropped continuously through Obama’s time in office.
P.S. Many libertarians here believe that tax cuts create jobs. Search for the WSJ article “Bush On Jobs: The Worst Track Record On Record.” It shows that ‘W’ had the worst job creation record since WWII. Since he lowered taxes, we can safely assume that there is NOT a positive relationship between job creation and tax cuts. This makes sense when you realize that globalization allows big-shots to create all new jobs in India, China, and other far-away places.
Part 3:
Second, if you peruse the monthly BLS report (BLS: “Employment Situation Summary”), you will notice some strange things. On many of the monthly BLS reports, 300,000-500,000 people were unceremoniously dropped from the ranks of the unemployed. So what happened to these people? Did they all win the lottery, inherit big bucks from a relative, marry a sugar daddy, or go to a Slender Man theme party? No, clearly what happened to them is that they became inconvenient to count, so the government simply dropped them. There are millions of these people.
Third, many people are only able to find part-time jobs. But how are these people counted? I know a woman who works three part-time jobs; does she account for three jobs created?
Part 2:
With all due respect, you, like most people, have swallowed the government line on how unemployment is measured. It would take me a few hours to find all of the links and expand this properly, so I won’t do it.
First, the country is growing and adds around 127,000 job-age people each month to the population. This is an average, obviously, because there is a large jump in May, June, and December. The point is that the economy must create 127,000 jobs each month just to maintain current employment.
EPI: “Signs of healing in the labor market, though unemployment remains in double digits”
Part 1:
leejcaroll wrote “employment has continued to grow despite no jobs bill from the republicans”
To paraphrase Bill Clinton, that all depends on what the definition of the word “grow” is.
First, I want to remind everyone that I am none of the following: libertarian, liberal, Republican, socialist, Democrat, Marxist, communist, fascist, Tea Party, or politically correct. I have beliefs that appear to be chosen from a Chinese restaurant menu, i.e. à la carte. If you put a gun to my head and forced me to choose a political party, I would choose the Bull Moose Party.