(Over)rulers

PETER: We’ll begin with a closer look at the charge that Obama is overstepping the limits on presidential powers. Our next guest believes that the outrage is warranted, but that it’s being misplaced. Bruce Ackerman, a Scholar of Constitutional Law at Yale, says that Obama is actually guilty of overreach in matters of foreign policy, not domestic policy.

He points to Obama’s treatment of the War Powers Resolution passed in the wake of US military action in Vietnam and Cambodia. Those interventions were instigated by executive command, and so in 1973 Congress came up with a law to keep presidential war making in check.

BRIAN: The basic idea of the War Powers Resolution is this. The president has 60 days from the initiation of hostilities, that’s a key phrase, to get congressional approval for military action. And if the president doesn’t get the go ahead, he or she has another 30 days to end that conflict.

Bruce Ackerman argues, this timetable has mostly done its job, until recently. Ackerman contends that President Obama first violated the resolution in 2011 with American intervention in Libya. Obama didn’t get authorization from Congress. Instead after the 90-day window had expired, the White House issued a legal opinion, stating that despite bombing a foreign country, the United States was not quote “engaging in hostilities.”

Just a few months ago when the military started bombing the so-called Islamic State, known as ISIL, Obama once again didn’t ask for congressional approval. And this time, Ackerman says, he didn’t even bother offering a legal fig leaf.

BRUCE ACKERMAN: He simply said that the Congress, when it authorized the wars against Al Qaeda and Saddam Hussein, also authorized 13 years later a war against ISIL. It is a tremendous affront to the American people not to have even tried to write a convincing document to support it. This is a breach of the rule of law. You cannot have presidents simply say, I have the authority, letter to follow.

BRIAN: I’m going to push back. Is the institution that’s failed here the Executive Branch and the President, or isn’t it Congress itself? What happened to that powerful Congress that passed the War Powers Resolution in the first place?

BRUCE ACKERMAN: The law says the president has to get out of the White House and organize and get Congress to accent. It just shouldn’t be the president can do whatever he wants unless Congress gets its act together. And it is really odd– or not odd– it’s too bad, let’s put it that way that the Republican leadership is focusing on other issues as if they were paradigmatic cases of abuse. Like for example, President Obama’s recent decision on undocumented immigrants.

BRIAN: Well, let’s just take immigration.

BRUCE ACKERMAN: Sure.

GREG ABBOTT: Is Obama within his legal rights to do what he’s done on immigration, use executive action to prioritize which undocumented immigrants are going to be deported first?

BRUCE ACKERMAN: Absolutely. He has just pushed this issue of how are we going to deal with this big immigration problem that we have, how are we going to deal with it, right onto the agenda. And if Congress doesn’t pass something in the next two years, then this is going to be issue number one or two when we have the 2016 election.

Now that’s just what Abraham Lincoln’s Emancipation Proclamation did. In lots of high school books it says, Abraham Lincoln freed the slaves. This is false. It freed zero slaves. The only place, says Abraham Lincoln, where people are free because of military necessity, I hereby declare that Black people are free wherever I can’t control them.

BRIAN: And that made the connection to the war aims crystal clear.

BRUCE ACKERMAN: That’s right. And Abraham Lincoln’s Emancipation Proclamation then forced the issue onto the agenda. In April 1864, the House of Representatives debated whether we should have the 13th Amendment, which would free the slaves. And you know what they did? They voted no. That propelled this issue into the 1864 election. The Republicans of Abraham Lincoln said, we’re are in favor of the Emancipation Proclamation, we’re in favor of the 13th Amendment, and they won a big victory in 1864. And that’s what convinced the Democrats to change their mind and to propose the 13th Amendment to the states.

BRIAN: If I understand you correctly, you’re saying that in both cases the president is taking action to implement the law operating on their executive discretion, if you will, but in essence saying, Congress, I’m inviting you to come in and deal with this in a more comprehensive way which brings me back to where we started. Congress could overrule the president on foreign action as well.

BRUCE ACKERMAN: Absolutely. But it is very bad to leave to one person, the President of the United States, the decision to make endless war. So far as foreign policy is concerned, it’s up to him to build a domestic political consensus, and that’s core constitutional commitment to the democratic control of foreign policy and a realistic appreciation that Americans, insofar as they’re concerned with politics at all are concerned with domestic politics, especially in the era of the volunteer army. It’s a very wise decision of the framers and of the Congress of 1973 to allocate the burden of responsibility for going to war differently than normal political business at home.

BRIAN: Bruce Ackerman is a professor at Yale Law School. We’ll post his New York Times op-ed about executive power at backstoryradio.org.

ED: It’s time for a short break, but don’t go away. When we get back, fears of a president who seems to think he’s king alters the entire political landscape in America.

PETER: You’re listening to BackStory. This is an executive order. Stay with us.