Presidential lawlessness, RE: Libya

[Trajan]

you know, you ought to read what I AM SAYING not what you want to read into what I am saying, you are responding or taking exception to explanations I have said I don't buy, and your continued use of pejorative analogies are glib.

That a court refused to hear an unknown case that cannot be judged on its merit is kind of meaningless. The fact that he's not the first to subvert the law in no way excuses him from subverting the law. Unless of course you think its OK to rob Banks because some people got away with it.

I would have thought this would not be new to you, it wasn't an 'unknown case'....

In 1990, when President George H. W. Bush sent troops to Saudi Arabia and neighboring countries to prepare for war against Iraq, a federal court turned aside a lawsuit brought by members of Congress who charged that he had acted without legal authority. The court concluded that only if Congress confronted the president as an institution, acting through both houses, would the case be ready for the courts (Dellums v. Bush, [1990]). Essentially the same result occurred when Representative Tom Campbell, a Republican of California, went to court with twenty-five other House colleagues to seek a declaration that President Bill Clinton had violated the Constitution and the War Powers Resolution by conducting an air offensive in Yugoslavia without congressional authorization. A district court held that Campbell lacked standing to bring the suit. Congress had never, as an institution, directed Clinton to cease military operations. That decision was upheld on appeal (Campbell v. Clinton, 1999).

Read more: War Powers Resolution: Information from Answers.com

 

[BenNatuf]

you know, you ought to read what I AM SAYING not what you want to read into what I am saying, you are responding or taking exception to explanations I have said I don't buy, and your continued use of pejorative analogies are glib.

why would your opinion of glib matter to me? Honestly, we all have our way of making points. You are the one that bought up the reporting requirements, I merely pointed out how they don't apply.

That a court refused to hear an unknown case that cannot be judged on its merit is kind of meaningless. The fact that he's not the first to subvert the law in no way excuses him from subverting the law. Unless of course you think its OK to rob Banks because some people got away with it.

I would have thought this would not be new to you, it wasn't an 'unknown case'....

In 1990, when President George H. W. Bush sent troops to Saudi Arabia and neighboring countries to prepare for war against Iraq, a federal court turned aside a lawsuit brought by members of Congress who charged that he had acted without legal authority. The court concluded that only if Congress confronted the president as an institution, acting through both houses, would the case be ready for the courts (Dellums v. Bush, [1990]). Essentially the same result occurred when Representative Tom Campbell, a Republican of California, went to court with twenty-five other House colleagues to seek a declaration that President Bill Clinton had violated the Constitution and the War Powers Resolution by conducting an air offensive in Yugoslavia without congressional authorization. A district court held that Campbell lacked standing to bring the suit. Congress had never, as an institution, directed Clinton to cease military operations. That decision was upheld on appeal (Campbell v. Clinton, 1999).

Read more: War Powers Resolution: Information from Answers.com

In the matter of Bush in 1990 the case was clearly frivolous as he DID have congressional authorization.

President George H. W. Bush requested a Congressional joint resolution on January 8, 1991, one week before the January 15, 1991 deadline issued to Iraq specified by the November 29, 1990 United Nations United Nations Security Council Resolution 678. President Bush had deployed over 500,000 U.S. troops without Congressional authorization to Saudi Arabia and the Persian Gulf region in the preceding five months in response to Iraq's August 2, 1990 invasion of Kuwait. President Bush said that as Commander-in-chief he did not need Congressional authorization to use military force against Iraq and that his request for a Congressional joint resolution was merely a courtesy to Congress.

I will point out a couple things from the link.

1. GHWB did not need Congressioanl authorization to deploy troops to SA. All he needed to do was meet the compliance reporting standards of the WPR for troops deployed overseas who MAY be engaged in combat. Since there was no combat until AFTER he got Congressioanl authorization he is in compliance with the law.

2. If those troops had been engaged by Sadam's forces he would not have needed congressional authorization under the WPR which states the President is authorized to act when US forces are attacked. They however were not, so he did.

3. GHWB is wrong in his assertion about not needing Congressional authorization to actually engage, which is of course meaningless since he got it. It's Truman's Korea argument and its garbage. The UNSC can authorize the NATION to act without being in violation of international law, but they have NO POWER to authorize the President to act sans Congressioanl authorization. And, thats exactly what the UN authorizing acts of 1945 state.

In the case of Clinton he clearly did act unlawfully, the action was later made lawful by Congressional authorization. That does not change the fact that the initial actions were unlawful. Clinton was not authorized by the Congress to act. That a court found the person suing to stop the unlawful acts did not in the courts opinion have standing to sue, is not an opinion from the court on the merits of the complaint. In fact, by the courts stating the the congress acting as an institution to sue would have had standing pretty much is an admission that the case did have enough merit to at least be heard if the appelant had standing to sue.

There are only three times in the history of thios nation that I know of when a President has taken action sans Congressional authority that could not be argued would have fit within the standards set in the WPR.

Harry Truman
Bill Clinton
Barak Obama

And in Truman's case he could at least argue "implied consent" because the Congress kept voting to pay for it. That argument was removed by the WPR.

Authorization for Use of Military Force Against Iraq Resolution of 1991 - Wikipedia, the free encyclopedia

 

[percysunshine]

First of all, I don’t sppt. this action.

You abrvtd. the word support?

...cool.

 

[Flopper]

It seems clear to me that if Obama, had gone to Congress to seek their approval and thus begun a national debate over the issue, Benghazi would have fallen with tens of thousands of causalities. Gaddafi would now be firmly in control and US or NATO intervention would be a mute point.

 

[BenNatuf]

It seems clear to me that if Obama, had gone to Congress to seek their approval and thus begun a national debate over the issue, Benghazi would have fallen with tens of thousands of causalities. Gaddafi would now be firmly in control and US or NATO intervention would be a mute point.

First of all the EO was signed by the president on Feb 25th and there had been active negotiations to form a coalition to enforce a NFZ for a month before the UN approved it. That smae time could have been used to consult the Congress and seek Congressioanl authorization. However, even without those facts, what happens in benghazi and Libya in General does not excuse the president from his requirement to comply with the law. Unless and until he gets Congressional authorization this action is unlawful.

BTW, are you using the same crystal ball Obama is? What would have been the problem with France and a coalition built by it doing this without us? It is thier oil contracts that they're fighting for.

 

[Trajan]

First of all, I don’t sppt. this action.

You abrvtd. the word support?

...cool.

every chance I get.....

 

[BenNatuf]

First I'd like to point out that so far the only arguments offered are that the actions are authorized under a law that says explicitly it can't be used to authorize any actions that aren't allready specifically authorized or identified as being legitimate, and says that seperate and specific statutory authorization is REQUIRED in the absence of meeting the criteria this action doesn't meet, namely an attack on the US or to prevent an imminent attack on the US.

Second, I'd like to point out the the applicable law (the one regulating our support of UN resolutions under AR 42 and 43, which is what this action is) which could authorize the actions is linked in the OP and no-one has even bothered to spin that one into some sort of authorization.

 

[Flopper]

It seems clear to me that if Obama, had gone to Congress to seek their approval and thus begun a national debate over the issue, Benghazi would have fallen with tens of thousands of causalities. Gaddafi would now be firmly in control and US or NATO intervention would be a mute point.

First of all the EO was signed by the president on Feb 25th and there had been active negotiations to form a coalition to enforce a NFZ for a month before the UN approved it. That smae time could have been used to consult the Congress and seek Congressioanl authorization. However, even without those facts, what happens in benghazi and Libya in General does not excuse the president from his requirement to comply with the law. Unless and until he gets Congressional authorization this action is unlawful.

BTW, are you using the same crystal ball Obama is? What would have been the problem with France and a coalition built by it doing this without us? It is thier oil contracts that they're fighting for.

I think if the issue had gone to Congress a month ago, the issue would have been debated for weeks, NATO would have been unsure of the US commitment and the entire process would have been delayed which would have been fine with me since I don't think we should be mixed up in Libya.

 

[BenNatuf]

It seems clear to me that if Obama, had gone to Congress to seek their approval and thus begun a national debate over the issue, Benghazi would have fallen with tens of thousands of causalities. Gaddafi would now be firmly in control and US or NATO intervention would be a mute point.

First of all the EO was signed by the president on Feb 25th and there had been active negotiations to form a coalition to enforce a NFZ for a month before the UN approved it. That smae time could have been used to consult the Congress and seek Congressioanl authorization. However, even without those facts, what happens in benghazi and Libya in General does not excuse the president from his requirement to comply with the law. Unless and until he gets Congressional authorization this action is unlawful.

BTW, are you using the same crystal ball Obama is? What would have been the problem with France and a coalition built by it doing this without us? It is thier oil contracts that they're fighting for.

I think if the issue had gone to Congress a month ago, the issue would have been debated for weeks, NATO would have been unsure of the US commitment and the entire process would have been delayed which would have been fine with me since I don't think we should be mixed up in Libya.

That would be Congress doing its job. if it got delayed it got delayed, there is no provision in the Constitution or the law allowing the presaident to unlawfully attack foriegn nations of his own volition because he thinks the Congress might be a little slow at their job.

Aside from that I strongly disagree. This is an issue of War and Peace and the Congress has never dithered or dallied with that... ever. Couple days to a week max. He had a month.

GHWB sent his request on 8 Jan, it was approved on 12 Jan

GWB had the Iraq AUMF in hand in OCT (or was it DEC?) 2002 3 to 5 months before he needed it and before he got a UNSC resolution.

The AUMF for A-stan was completed before we started doing anything (and it wasn't even required to initiate action as we had been attacked)

Clinton Got his AUMF after he started opperations but within a couple days of asking for it (he had dithered for about 3 months before signing on and had plenty of time to get one before hand)

Obama had a solid month to seek authorization, if he wasn't sure he was going to do anything he at least had the last week before they started when the UN resolution was being drafted and negotiated (at which time he OBVIOUSLY knew once it was approved he would act). And, in any event, even though he acted unlawfully without authorization could have called the Congress into emergency session to get an authorization after the fact, but a trip to Brazil with the family was a higher priority.

His FIRST order of business now should be to seek Congressioanl authorization. Which once it passes will end any complaint I have about the process.

 

[BenNatuf]

You'd think a lawyer would at least cover all of the bases.

GOP lawyer drafts Obama impeachment - Ben Smith - POLITICO.com

doesn't debunk the use of reporting requirements as authorization in the WPR and doesn't even mention the UN authorization act, both of which clearly make the Libyan action unlawful.

 

[Si modo]

Much debate has been given to the Presidents authority or lack thereof to order attacks on Libya. Here is my assessment of that subject.

Article 43

1. All Members of the United Nations... undertake to make available to the Security Council, on its call and in accordance with a special... agreements, armed forces... necessary for the purpose of maintaining international peace and security.

3. The ...agreements... shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.

it can be seen in AR 43 that any support given to the UN in support of UNSC resolutions must be in accordance with a "special agreements", and "in accordance with their respective constitutional processes"

So whether or not we are obligated under the UN Charter to provide support is completely dependent on whether or not there are any AR 43 agreements

There are not, but just to continue as if there were...

Constitution

1. Article 1 sec 8 gives the Congress the power to declare war.

2. Article 2 makes the President the CinC of the armed forces.

3. Article 3 gives the SCOTUS the authority to decide all cases in law and equity in accordance with the Constitution of the US, laws, and treaties.

To find the extent of these powers, we must look to the law. First and foremost what in the law is "war"?

every contention by force between two nations, in external matters, under the authority of their respective governments, is not only war, but public war

Is there a contention by force between two nations under the authority of their respective governments?

Yes, if your honest.

Some may attempt to argue that since congress has not authorized it it is not "under the authority" of the US government. That may be true, but its irrellevant as the president is the CinC and he is the "authority" the action is being conducted under, making the argument circular in reasonning as, if he is the authority, then it is war and if it is war, we return to the question of whether the President as CinC can make war without a declaration of war.

So, by virtue of the opinion of the Constituional body empowered to say what war is our actions in Libya constitute "war".

Is this war "lawful"? To answer this we must determine first what a DoW is.

From the Constitutional body empowered to decide these thing.

Here we see that an authorization to commit acts of war from the Congress is in fact "war". Lest you be confused they made it simple



Does the President have legitimate authority to make war? To answer this we must answer two question.

1. Does the president hold himself the power to make war without Congressional authorization?

2. If not, is the action in Libya authorized by the Congress?

War Powers Resolution



Here the Congress is clear, and the law is clear. The president may commit forces into hostilities either

1. persuant to a declaration of war
2. persuant to specific statuatory authorization
3. To respond to an attack, repel an invasion, or prevent an imminent attack.

The WPR cannot be used as authorization. Seperate and specific statuatory authorization is required.

Some have used the Consultation provision to justify the action, but this completely overlooks that the Consultation is neccessary only in the event the action is authorized to begin with, as if its not, there will be no action and no reason to cunsult. Complying with the consultation provisions after the fact, does not create authorization for the acts to be taken before the fact. This argument is akin to robbing a bank and then claiming it's OK because you didn't cheat on your taxes. Not to mention the text of the WPR prohibits its use.

1 and 3 are not applicable that leaves 2: Specific statuatory authorization.

Is there specific statuatory authorization? To find this out we have to look at treaty provisions and the laws enacted to empower them.

The NATO Treaty.

Some have claimed we have an obligation under the NATO treaty which empowers the President as it has the force of law and has been ratified. But what exactly does the NATO Charter say?

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all, and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually, and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Has a NATO country been attacked by Libya?

No.

End of NATO treaty argument.

This brings us to laws enacted to empower AR 42 and 43 of the UN Charter

The United Nations Participation Act of December 20, 1945

The President is authorized to negotiate... agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution...for the purpose of maintaining international peace and security in accordance with article 43...

The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special... agreements the armed forces... provided for therein:

Provided, That nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose... forces...in addition to the forces... provided for in such special... agreements

1. The President is empowered to negotiate agreements under AR 43 which are subject to Congressional authorization.

2. The President may use troops covered under such AR 43 at his discretion in furtherance of an AR 42 resolution.

3. No troops other than those who are covered under an AR 43 agreements may be used without Congressional authorization.

Is there an AR 43 agreement in force that the president could draw forces from to act in furtherance of a UNSC AR 42 resolution?

No.

Is the President legally authorized to commit troops not covered in an AR 43 agreement?

No. In fact, he's restricted from it.

The Congress has the Constitutional power to "make all laws necessary and proper all powers vested by the Constitution in the Government of the United States or officer thereof"

The President is an Officer of the United States, and persuant to the Congressional authority to declare war they have restricted the Presidents ability to make war without their authorization to "respond to an attack, repel an invasion, or prevent an imminent attack".

They have empowered him to engage in UNSC actions under AR 43 to "negotiate a special agreement or agreements which shall be subject subject to the approval of the Congress" they further empower him to act without further authorization in support of AR 42 of the UN Charter "pursuant to such special agreements" and restrict him from the use of any other forces except those covered in AR 43 agreements.

Clearly there is no legal authority for the President to act in Libya. Further, it is clearly unlawful for him to do so without Congressional authorization.

Avalon Project - NATO Treaty; April 4, 1949

War Powers Resolution of 1973

BAS V. TINGY, 4 U. S. 37 :: Volume 4 :: 1800 :: US Supreme Court Cases from Justia & Oyez

FindLaw: U.S. Constitution: Article II: Annotations pg. 12 of 18

Our Constitution is the supreme law of our land. Period. However, as Congress has ratified our treaty with both the UN and NATO (per the Constitution), the President can freely participate in those treaties. Or he can choose not to participate in those treaties. State matters (ie. foreign relations) fall under the authority of the Executive Branch. Either way, the President breaks no law of ours, and those are the ONLY laws that apply to him in this matter.

 

[George Costanza]

If I missed any of the Arguments in favor of Presidential authority sans congressional action, feel free to make them.

Well argued OP.

Where were you when Bush was in office?

 

[BenNatuf]

If I missed any of the Arguments in favor of Presidential authority sans congressional action, feel free to make them.

Well argued OP.

Where were you when Bush was in office?

Where were you when the congress authorized his actions? Asleep? In a coma? On crack?

You do know the difference between unlawfully attacking a foriegn nation and lawfully engaging in war don't you?

Dumbass liberals squawked for years about Bush's "illegal wars" and there was nothing illegal about them. Now they make O'pologies and excuses for a war that is clearly unlawful.

 

[BenNatuf]

Much debate has been given to the Presidents authority or lack thereof to order attacks on Libya. Here is my assessment of that subject.

Article 43

1. All Members of the United Nations... undertake to make available to the Security Council, on its call and in accordance with a special... agreements, armed forces... necessary for the purpose of maintaining international peace and security.

3. The ...agreements... shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.

it can be seen in AR 43 that any support given to the UN in support of UNSC resolutions must be in accordance with a "special agreements", and "in accordance with their respective constitutional processes"

So whether or not we are obligated under the UN Charter to provide support is completely dependent on whether or not there are any AR 43 agreements

There are not, but just to continue as if there were...

Constitution

1. Article 1 sec 8 gives the Congress the power to declare war.

2. Article 2 makes the President the CinC of the armed forces.

3. Article 3 gives the SCOTUS the authority to decide all cases in law and equity in accordance with the Constitution of the US, laws, and treaties.

To find the extent of these powers, we must look to the law. First and foremost what in the law is "war"?



Is there a contention by force between two nations under the authority of their respective governments?

Yes, if your honest.

Some may attempt to argue that since congress has not authorized it it is not "under the authority" of the US government. That may be true, but its irrellevant as the president is the CinC and he is the "authority" the action is being conducted under, making the argument circular in reasonning as, if he is the authority, then it is war and if it is war, we return to the question of whether the President as CinC can make war without a declaration of war.

So, by virtue of the opinion of the Constituional body empowered to say what war is our actions in Libya constitute "war".

Is this war "lawful"? To answer this we must determine first what a DoW is.

From the Constitutional body empowered to decide these thing.

Here we see that an authorization to commit acts of war from the Congress is in fact "war". Lest you be confused they made it simple



Does the President have legitimate authority to make war? To answer this we must answer two question.

1. Does the president hold himself the power to make war without Congressional authorization?

2. If not, is the action in Libya authorized by the Congress?

War Powers Resolution



Here the Congress is clear, and the law is clear. The president may commit forces into hostilities either

1. persuant to a declaration of war
2. persuant to specific statuatory authorization
3. To respond to an attack, repel an invasion, or prevent an imminent attack.

The WPR cannot be used as authorization. Seperate and specific statuatory authorization is required.

Some have used the Consultation provision to justify the action, but this completely overlooks that the Consultation is neccessary only in the event the action is authorized to begin with, as if its not, there will be no action and no reason to cunsult. Complying with the consultation provisions after the fact, does not create authorization for the acts to be taken before the fact. This argument is akin to robbing a bank and then claiming it's OK because you didn't cheat on your taxes. Not to mention the text of the WPR prohibits its use.

1 and 3 are not applicable that leaves 2: Specific statuatory authorization.

Is there specific statuatory authorization? To find this out we have to look at treaty provisions and the laws enacted to empower them.

The NATO Treaty.

Some have claimed we have an obligation under the NATO treaty which empowers the President as it has the force of law and has been ratified. But what exactly does the NATO Charter say?

Has a NATO country been attacked by Libya?

No.

End of NATO treaty argument.

This brings us to laws enacted to empower AR 42 and 43 of the UN Charter

The United Nations Participation Act of December 20, 1945

The President is authorized to negotiate... agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution...for the purpose of maintaining international peace and security in accordance with article 43...

The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special... agreements the armed forces... provided for therein:

Provided, That nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose... forces...in addition to the forces... provided for in such special... agreements

1. The President is empowered to negotiate agreements under AR 43 which are subject to Congressional authorization.

2. The President may use troops covered under such AR 43 at his discretion in furtherance of an AR 42 resolution.

3. No troops other than those who are covered under an AR 43 agreements may be used without Congressional authorization.

Is there an AR 43 agreement in force that the president could draw forces from to act in furtherance of a UNSC AR 42 resolution?

No.

Is the President legally authorized to commit troops not covered in an AR 43 agreement?

No. In fact, he's restricted from it.

The Congress has the Constitutional power to "make all laws necessary and proper all powers vested by the Constitution in the Government of the United States or officer thereof"

The President is an Officer of the United States, and persuant to the Congressional authority to declare war they have restricted the Presidents ability to make war without their authorization to "respond to an attack, repel an invasion, or prevent an imminent attack".

They have empowered him to engage in UNSC actions under AR 43 to "negotiate a special agreement or agreements which shall be subject subject to the approval of the Congress" they further empower him to act without further authorization in support of AR 42 of the UN Charter "pursuant to such special agreements" and restrict him from the use of any other forces except those covered in AR 43 agreements.

Clearly there is no legal authority for the President to act in Libya. Further, it is clearly unlawful for him to do so without Congressional authorization.

Avalon Project - NATO Treaty; April 4, 1949

War Powers Resolution of 1973

BAS V. TINGY, 4 U. S. 37 :: Volume 4 :: 1800 :: US Supreme Court Cases from Justia & Oyez

FindLaw: U.S. Constitution: Article II: Annotations pg. 12 of 18

Our Constitution is the supreme law of our land. Period. However, as Congress has ratified our treaty with both the UN and NATO (per the Constitution), the President can freely participate in those treaties. Or he can choose not to participate in those treaties.

Is reading comprehension not your forte'? The Predident is not free to do anything, the Nato charter requires an attack on a NATO country to trigger AR5 before the President can act without congressional authorization, and the UN Charter specifically requires that we follow our own constitutional process' before acting. The law authorizing the UN charter specifically says the president MUST go to the congress to do so.

State matters (ie. foreign relations) fall under the authority of the Executive Branch.

Not entirely and not for the initiation of war

Either way, the President breaks no law of ours, and those are the ONLY laws that apply to him in this matter.

No? Then maybe you could explain why he's not subject to the UN Participation act of 1945 and the WPR. Because "you saying so" just don't cut it.

 

[George Costanza]

If I missed any of the Arguments in favor of Presidential authority sans congressional action, feel free to make them.

Well argued OP.

Where were you when Bush was in office?

Where were you when the congress authorized his actions? Asleep? In a coma? On crack?

You do know the difference between unlawfully attacking a foriegn nation and lawfully engaging in war don't you?

Dumbass liberals squawked for years about Bush's "illegal wars" and there was nothing illegal about them. Now they make O'pologies and excuses for a war that is clearly unlawful.

Hey, Sunshine . . . . they are/were BOTH illegal and BOTH ill advised.

And lighten up your posting style. Someone might think you were a real asshole.

 

[TakeAStepBack]

If I'm not mistaken, congress hasn't formally declared war since WWII. So, while this move is shameful and disgusting, it isn't the first time a president overstepped their bounds.

 

[BenNatuf]

Well argued OP.

Where were you when Bush was in office?

Where were you when the congress authorized his actions? Asleep? In a coma? On crack?

You do know the difference between unlawfully attacking a foriegn nation and lawfully engaging in war don't you?

Dumbass liberals squawked for years about Bush's "illegal wars" and there was nothing illegal about them. Now they make O'pologies and excuses for a war that is clearly unlawful.

Hey, Sunshine . . . . they are/were BOTH illegal and BOTH ill advised.

Hey moonbat, there was nothing illegal about Bush going into either A-stan of Iraq, they were both congressionlly authorized. Whether or not they were ill advised is a matter of opinion, I happen to think they were very well advised. I also stated pretty clearly in the OP I have no real problem with Libya once the congress authorizes it. It is a natural extension of the Bush doctrine and IMO in our long term interests. You shouldn't let your BDS overule simple facts, it just makes you look dumb.

And lighten up your posting style. Someone might think you were a real asshole.

eh? People are free to think what they want.

 

[Si modo]

Much debate has been given to the Presidents authority or lack thereof to order attacks on Libya. Here is my assessment of that subject.

Article 43



it can be seen in AR 43 that any support given to the UN in support of UNSC resolutions must be in accordance with a "special agreements", and "in accordance with their respective constitutional processes"

So whether or not we are obligated under the UN Charter to provide support is completely dependent on whether or not there are any AR 43 agreements

There are not, but just to continue as if there were...

Constitution

1. Article 1 sec 8 gives the Congress the power to declare war.

2. Article 2 makes the President the CinC of the armed forces.

3. Article 3 gives the SCOTUS the authority to decide all cases in law and equity in accordance with the Constitution of the US, laws, and treaties.

To find the extent of these powers, we must look to the law. First and foremost what in the law is "war"?



Is there a contention by force between two nations under the authority of their respective governments?

Yes, if your honest.

Some may attempt to argue that since congress has not authorized it it is not "under the authority" of the US government. That may be true, but its irrellevant as the president is the CinC and he is the "authority" the action is being conducted under, making the argument circular in reasonning as, if he is the authority, then it is war and if it is war, we return to the question of whether the President as CinC can make war without a declaration of war.

So, by virtue of the opinion of the Constituional body empowered to say what war is our actions in Libya constitute "war".

Is this war "lawful"? To answer this we must determine first what a DoW is.

From the Constitutional body empowered to decide these thing.

Here we see that an authorization to commit acts of war from the Congress is in fact "war". Lest you be confused they made it simple



Does the President have legitimate authority to make war? To answer this we must answer two question.

1. Does the president hold himself the power to make war without Congressional authorization?

2. If not, is the action in Libya authorized by the Congress?

War Powers Resolution



Here the Congress is clear, and the law is clear. The president may commit forces into hostilities either

1. persuant to a declaration of war
2. persuant to specific statuatory authorization
3. To respond to an attack, repel an invasion, or prevent an imminent attack.

The WPR cannot be used as authorization. Seperate and specific statuatory authorization is required.

Some have used the Consultation provision to justify the action, but this completely overlooks that the Consultation is neccessary only in the event the action is authorized to begin with, as if its not, there will be no action and no reason to cunsult. Complying with the consultation provisions after the fact, does not create authorization for the acts to be taken before the fact. This argument is akin to robbing a bank and then claiming it's OK because you didn't cheat on your taxes. Not to mention the text of the WPR prohibits its use.

1 and 3 are not applicable that leaves 2: Specific statuatory authorization.

Is there specific statuatory authorization? To find this out we have to look at treaty provisions and the laws enacted to empower them.

The NATO Treaty.

Some have claimed we have an obligation under the NATO treaty which empowers the President as it has the force of law and has been ratified. But what exactly does the NATO Charter say?

Has a NATO country been attacked by Libya?

No.

End of NATO treaty argument.

This brings us to laws enacted to empower AR 42 and 43 of the UN Charter

The United Nations Participation Act of December 20, 1945



1. The President is empowered to negotiate agreements under AR 43 which are subject to Congressional authorization.

2. The President may use troops covered under such AR 43 at his discretion in furtherance of an AR 42 resolution.

3. No troops other than those who are covered under an AR 43 agreements may be used without Congressional authorization.

Is there an AR 43 agreement in force that the president could draw forces from to act in furtherance of a UNSC AR 42 resolution?

No.

Is the President legally authorized to commit troops not covered in an AR 43 agreement?

No. In fact, he's restricted from it.

The Congress has the Constitutional power to "make all laws necessary and proper all powers vested by the Constitution in the Government of the United States or officer thereof"

The President is an Officer of the United States, and persuant to the Congressional authority to declare war they have restricted the Presidents ability to make war without their authorization to "respond to an attack, repel an invasion, or prevent an imminent attack".

They have empowered him to engage in UNSC actions under AR 43 to "negotiate a special agreement or agreements which shall be subject subject to the approval of the Congress" they further empower him to act without further authorization in support of AR 42 of the UN Charter "pursuant to such special agreements" and restrict him from the use of any other forces except those covered in AR 43 agreements.

Clearly there is no legal authority for the President to act in Libya. Further, it is clearly unlawful for him to do so without Congressional authorization.

Avalon Project - NATO Treaty; April 4, 1949

War Powers Resolution of 1973

BAS V. TINGY, 4 U. S. 37 :: Volume 4 :: 1800 :: US Supreme Court Cases from Justia & Oyez

FindLaw: U.S. Constitution: Article II: Annotations pg. 12 of 18

Our Constitution is the supreme law of our land. Period. However, as Congress has ratified our treaty with both the UN and NATO (per the Constitution), the President can freely participate in those treaties. Or he can choose not to participate in those treaties.

Is reading comprehension not your forte'? The Predident is not free to do anything, ....

I don't know if someone who can't comprehend what I said is really in a position to talk much about reading comprehension.

.... State matters (ie. foreign relations) fall under the authority of the Executive Branch.

.... Not entirely and not for the initiation of war.

Yes, State matters do fall under the Executive Branch. Don't believe me, though: Federal Executive Branch: USA.gov

And, are we at war?

Either way, the President breaks no law of ours, and those are the ONLY laws that apply to him in this matter.

No? Then maybe you could explain why he's not subject to the UN Participation act of 1945 and the WPR. Because "you saying so" just don't cut it.

I'm sure you'll let us all know when the UN became the supreme law of the land.

I'd say I will wait, but I'm not too interested in waiting for another assholish reply.

 

[BenNatuf]

If I'm not mistaken, congress hasn't formally declared war since WWII. So, while this move is shameful and disgusting, it isn't the first time a president overstepped their bounds.

You would be mistaken then, and if you read the OP and the SCOTUS rulings you'd know that. The SCOTUS ruled over 200 years agoi that an AUMF was a Declaratrion of War, just a different method of doing it. Also there is no overstepping of bounds when the action fall within the Presidents constitutional limitations

1. DoW
2. AUMF
3. Respond to, repel or prevent an attack

 

[BenNatuf]

Our Constitution is the supreme law of our land. Period. However, as Congress has ratified our treaty with both the UN and NATO (per the Constitution), the President can freely participate in those treaties. Or he can choose not to participate in those treaties.

Is reading comprehension not your forte'? The Predident is not free to do anything, ....

I don't know if someone who can't comprehend what I said is really in a position to talk much about reading comprehension.

I comprehend what you said... it's just wrong

Yes, State matters do fall under the Executive Branch. Don't believe me, though: Federal Executive Branch: USA.gov

Why yes the state department is an executive branch agency, it however has no authority to approve the President to go to war.

And, are we at war?

According to the SOTUS rulings on what war is... yes. That would be the LAW.

Either way, the President breaks no law of ours, and those are the ONLY laws that apply to him in this matter.

No? Then maybe you could explain why he's not subject to the UN Participation act of 1945 and the WPR. Because "you saying so" just don't cut it.

I'm sure you'll let us all know when the UN became the supreme law of the land.

Did you even read the fucking OP? The UN Participation act dumabass is OUR LAW. It is you who is claiming the UN saying so makes it OK for the President to engage in war without congressional authorization and that is flat out false. All you have to do to know that is read the UN Charter AR 42-43 and the UN Participation act of 1945 sec 6. The President CANNOT use military force in support of UN resolutions without congressional authority.

I'd say I will wait, but I'm not too interested in waiting for another assholish reply.

Maybe if you bothered to read and address the LEGAL points in the OP instead of talking out your ass, you wouldn't get ass back. It's obvious you didn't even read it. Or if you did have no ability to understand what it is the law clearly says even when its painted for you by the fucking numbers.