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INTERVIEW: Rep. Brad Sherman on Libya and Obama’s Imperial Presidency

A confrontation is brewing between the executive and legislative branches over the legality of America's continued military role enforcing the no fly zone over Libya. On Tuesday, June 14, House Speaker John Boehner warned the president he had until Sunday to seek authorization from Congress for the operation, or else he'd be in violation of the War Powers Resolution-the controversial 1973 law that requires presidents to get congressional approval for any military conflict lasting longer than 60 days. The bombing campaign in Libya is now up to day 89.

The White House said it would provide a legal defense to Congress later today for why it isn't in violation of the War Powers law.  

"We are in the final stages of preparing extensive information for the House and Senate that will address a whole host of issues about our ongoing efforts in Libya," national security spokesman Tommy Vietor said in a statement.

On Tuesday, the same day as Boehner's warning to Obama, the House voted 248-163 to cut off funding for the U.S. mission in Libya, which is costing at least $40 million a month. The amendment to a military appropriations bill was introduced by Brad Sherman (D-CA) as a reaction to what he said was the President's violation of the War Powers Act. It still has to be approved by the Senate. Foreign Policy spoke to Sherman about his decision to pursue the drastic step of defunding the war.  

Foreign Policy: You've used some strong language with regard to the White House-accusing the president of deliberately violating the law by not seeking congressional approval for Libya. And saying he's "embraced the idea of an imperial presidency."

Brad Sherman: Look, there has been a move over the last three or four decades toward an imperial presidency. Many historians and constitutional scholars have commented on that. And, I don't think that's what the founders had in mind. They were students of ancient Rome. They knew that Rome rose as a republic and that it declined under an imperial executive. And this isn't about the current president. This is about the last three or four decades.

FP: But this particular vote is about the current president.

BS: Well, this is the president now. No president has said they would follow the war powers law, even though it's the law of the land. Even though it's an extremely generous allocation of authority to the president. For a president not to adhere to the War Powers Act is a president-and, there are many-who takes a truly extreme view of executive power.

FP: Lee Hamilton and James Baker argued that this has more to do with political turf battles than foreign policy...

BS: This is not a foreign policy dispute. This is a domestic constitutional dispute. And if I agreed with absolutely everything a president was doing in foreign policy, I would still not support the violation of law. How you do it is a domestic issue and that's far more important than foreign policy. People have got to understand that America cannot play the role that it wants to play in foreign policy if it ignores its own constitution. And no matter how important they think foreign policy is, constitutional policy is more important.

FP: On Libya specifically, what about the argument that NATO is running the show...that the U.S. handed off responsibility to them?

BS: There is nothing in the U.S. Constitution that says you can violate the law as long as NATO blesses it. There is nothing in the American Constitution that says you can violate the law as long as you're consistent with a resolution of the Arab League. And there is nothing in the Constitution that says you can violate the U.S. law as long as your acting consistent with the UN Security Council resolution.  

FP: But there is some dispute about the War Powers Act, isn't there? The Supreme Court has never decisively come down one way or the other on who has the ultimate power when it comes to declaring war.

BS: There are certain constitutional issues where the Supreme Court doesn't want to weigh in. That doesn't mean the Constitution is void.

FP: I know you said it's a constitutional issue, but are you concerned that this could be seen as undercutting the president overseas?

BS: There are those in the executive branch under this and former and future administrations who believe America can go forward only if we shred the Constitution in favor of an imperial presidency. They are advocates for an imperial presidency. They are not advocates for the Constitution and they are not advocates for the rule of law.

The State Department believes in democracy and the rule of law in every country, except the United States. It is official policy of the State Department that no president should ever actually admit that the War Powers Act is binding or is the law. Look at how extreme a position it is. Whether or not we are under attack, whether or not there is an emergency situation, whether or not an ally is attacked, a president may send American forces in any quantity he or she thinks necessary for any duration, for any purpose. I mean is there any constraint that the State Department is willing to acknowledge?

FP: Isn't it in the U.S. interest to see that Muammar Qaddafi step down?

BS: Yes. The second most important thing is that we bring democracy and the rule of law to Libya. The first most important thing is that we have democracy and the rule of law in the United States.  

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Is the fix in at the IMF?

Today's big story on the race to succeed Dominique Strauss-Kahn as managing director of the IMF is that Bank of Israel Governor Stanley Fischer was disqualified on account of his age -- he's 67 -- setting up a contest between French Finance Minister Christine Lagarde and Bank of Mexico Governor Agustín Carstens. While nationality has certainly been a factor in the IMF race so far, age hasn't been much discussed, though India's candidate for the job, the 68-year-old Montek Singh Ahluwalia, was reportedly ruled out for the same reason. 

The age limit does indeed appear in the IMF's by-laws: 

[N]o person shall be initially appointed to the post of Managing Director after he has reached his sixty-fifth birthday and ... no Managing Director shall hold such post beyond his seventieth birthday.

A maximum age for a job of this type seems a bit bizarre. No one seems to mind that Ban Ki-moon, who is currently seeking reelection as U.N. Secretary General, is 65. James Wolfensohn led the World Bank when he was in his 70s. I asked Political Scientist Miles Kahler, author Leadership Selection in the Major Multilaterals, if there was precedent for a candidate being disqualified on this basis: 

A working group to reform the selection process at the Bank and Fund, which reported a decade ago, recommended that there be no age limit (which matches the trend in most countries for senior positions).  That recommendation was not implemented, and the by-laws remain unchanged. [...]

No other candidates have been disqualified because of age, so far as I know.  I am not sure whether age was simply an excuse on the part of the Executive Board to remove a "wild card" candidate. You will recall that Fischer was a very popular candidate among the developing countries during the 2000 selection; the Clinton Administration ultimately decided not to back him against the German candidate.  He is a truly multinational candidate:  born in Zambia; educated in the UK and the US; experience in academia, private sector, government (central bank of Israel), and the IMF itself.  

Indeed, some have speculated that the Board made the surprise decision not to waive the age requirement is that Fishcer could have split the vote between Lagarde and Carstens, preventing a consensus candidate from emerging.

Between the fact that two of the most qualified non-European candidates have been disqualified on the basis of an antiquated by-law -- no one seems to be giving Carstens much of a chance against Lagarde -- and the fact that a French court has conveniently delayed a ruling on abuse of power charges against the finance minister, European countries are certainly giving the impression that they'll use any tool they can to keep their gentleman's agreement in effect. 

JACK GUEZ/AFP/Getty Images