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Tuesday, Jun 28, 2011, 11:01 am

Challenges to Executive Power: Increasingly Rare and Increasingly Important

By David Szydloski

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On June 15, 10 members of the House of Representatives—7 Republicans and 3 Democrats—filed a complaint in federal court against President Obama and Secretary of Defense Robert Gates, asking the court to enter an order declaring the continued involvement of American combat forces in Libya unconstitutional because it is in violation of the War Powers Resolution of 1973 and Article I, Sec. 8, Clause 11 of the U.S. Constitution.

By addressing the legality of U.S. involvement in Libya, the lawsuit attacks the philosophy of expansive executive powers maintained by recent presidents (both Democratic and Republican), which has allowed them to circumvent Congress at will.

The real-world effect of this philosophy can best be seen in President Obama’s recently revealed rejection of opinions of “top lawyers at the Pentagon and the Justice Department” who argued that the U.S.’s actions were not covered by the War Powers Act and it would have been essential to “terminate or scale back the mission after May 20.” Such official recommendations from within the executive branch are surprising and rare, all the more so since these rejected views came, in part, from the same Office of Legal Counsel which had only recently written a memorandum in support of the president’s position.

By maintaining the legality of continuing U.S. military involvement in Libya despite protests within his administration, Obama is showing himself to be more and more of a president in the mold of George W. Bush. This can be seen in his prevarication in calling military actions that rely “only” on drone missile strikes and aerial bombings not “hostilities” but rather “limited kinetic operations.” The result of Obama’s position is an avoidance of the full costs of any U.S. military action. Even without “boots on the ground”, air strikes and support operations involve a great deal of personnel and materiel, the cost of which is passed on to the taxpayer. In Libya, the complaint estimates the total current costs exceed $750 million dollars.

The ultimate the irony here is that Obama could very well have gotten congressional support prior to or immediately after the beginning of Operation Discovery Dawn as politicians on both sides of the aisle were vocal in their outrage at Ghaddafi’s actions. Why wasn’t this done? Drawing a connection between Obama’s current position and George W. Bush’s approach to his warrantless wiretapping program, Glenn Greenwald suggests that congressional approval is not sought after simply because "the president is omnipotent in these areas and needs nobody's permission (neither from Congress nor the courts) to do what the President wants."

We will have to wait and see what the Obama administration does with its 30 days to answer the complaint filed by the 10 congressmen. Even if the complaint is ultimately dismissed, the plaintiffs have made a rare and important effort to confront runaway executive powers that become more normalized with each passing day.
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