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Tuesday, Mar 13, 2012, 10:43 am

Rule of Law or Rule of President?: Congressional War Powers Are Heart of ‘Impeachment Bill’

By Andrew Bashi

President Obama arrives at Baghdad International Airport for an unannounced visit in April 2009.
(Photo by Staff Sgt. Amanda Currier, USA [Public domain], via Wikimedia Commons)

On March 7, anti-war Congressman Walter Jones (R- N.C.) introduced a bill declaring that executive use of offensive military force not explicitly authorized by Congress constitutes an impeachable offense under the Constitution of the United States.

The bill, H. Con. Res. 107, is a concurrent resolution that would serve as a reminder to President Obama and future presidents that such use of force is “an impeachable high crime and misdemeanor." Even if passed, the bill would not be submitted to the president and thus would not have the force of law. But, following a long period in which Congress appears to have abdicated its Constitutional authority to declare war, the bill could mark the beginning of a push to curb executive powers.

Unfortunately, this does not appear to be the case as of yet. Instead, numerous outlets across the Right have labeled the resolution the “Obama Impeachment Bill.” While Republicans will likely utilize the bill as a tool to fuel further hatred of the incumbent president, the president’s main media supporters have largely ignored it. Most of those who have chosen to discuss it, primarily bloggers, have completely dismissed its validity, labeling it a ridiculous political attack.

Both sides of the debate over Jones' bill are missing, or intentionally distorting, the key issue at stake in this effort. Beneath all the rhetoric circulating around the bill is one critical question: Should one person continue to have the de facto power to lead our nation into war? 

In 2007, presidential candidate and constitutional law professor Obama responded to this question with an emphatic “no”:

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. . .History has shown us time and again. . .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.

Yet, when questioned last week on the possible future deployment of the United States military in Syria, speaking on behalf of the Obama administration, Defense Secretary Leon Panetta cited “international permission” from NATO or the United Nations, not that of Congress, as the legal basis for military intervention.

After criticizing the Bush administration's expansion of executive powers, one would expect progressives to support greater accountability of the executive, especially as regards the power to go to war. Yet Obama supporters have been relatively silent on this issue as the president has ushered through an unprecedented expansion of executive power. Instead of guarding the principles they claimed to espouse when voting for him in the first place, Democrats, in a chapter from the Bush-era Republican playbook, have chosen to ignore the possibility that the president may act unconstitutionally in the future, leaving these actions outside the rule of law.

Whether Obama has in fact violated the Constitution by failing to seek congressional declarations of war prior to commencing with bombings of Libya, Pakistan, Somalia, and Yemen should not be the only question sparked by Jones' bill. The much larger and more significant issue is whether the expansion of executive power should be able to continue unchecked, or whether the actions of all presidents should be brought under the purview of the Constitution and Congress.

Glenn Greenwald has accurately categorized support among liberal Democrats for Obama's counter-terrorism policies as "repulsive progressive hypocrisy." Such individuals act as  “authoritarian cultists,” defending the policies of their all-powerful leader, despite the fact that they despised the very same policies not long before.

“When you talk about war, political parties don’t matter,” Congressman Jones said in an interview. “Enough is enough.”

This writer agrees with the congressman, but until the American people realize the gravity of the issue at hand and insist that both parties quit their role reversals based on who is in power, whether the Constitution and the rule of law applies to the president will remain a partisan issue.

Andrew Bashi is a Winter 2012 editorial intern at In These Times. A-third year law student at Loyola University Chicago, he is an active board member of the Chicago Chapter of the National Lawyers Guild.

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