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.