guest post

--by Dave from the comments section

President Obama's decision to avoiding seeking Congressional support for his military action in Libya has the potential to create a significant constitutional crisis, and in this case a crisis would involve people with guns and that is obviously is quite dangerous.

I'm a naval officer. I generally don't like making partisan political arguments and I am essentially prohibited from making such statements in public. Even though I have pretty strong political opinions, I'm okay with that; a staunchly non-partisan military is one of our country's great accomplishments. Unlike everyone else is the country, I have people who have explicitly sworn to obey my orders. So I really need to be careful about what I say … my comments could be construed as undermining the constitutional order. And since these people who swear to obey my orders have access to guns, well, that's a big deal.

So saying this could theoretically land me in a bit of hot water, but it needs to be said.

That constitutional order is very important. As a commissioned officer, I have sworn to preserve, protect, and defend the Constitution of the United States. Not to obey orders, but to support the constitution. And while that constitution names the President as the military's commander-in-chief, it also grants a significant war-making role to Congress. And Congress, empowered to both declare war and to regulate the naval and land forces, has exercised that power in the form of the War Powers Act. And my sense is that the administration, by continuing military operations in Libya beyond the 60 day limit without congressional approval, is violating that Act. So what is an officer to do?

I don't think the answer is clear. I might breezily state that a good military officer should refuse any orders dealing with Libya. Legally defensible perhaps, but generally not a good habit to get into. The armed forces should not get into the practice of parsing the constitutionality of orders, especially those from the top.

But, the War Powers Act remains. If the intent was for the armed forces to just obey Presidential orders, congress would have included the part from the enlistment oath about obeying orders in the officer's commissioning oath. They left that out on purpose, creating in the contest of Libya a bit of an ethical quandary.

And let me dispense with the notion that the War Powers Act is unconstitutional so it shouldn't be followed. Well, that might be the administration's take (they've been a bit nebulous on that point).Certainly that's what Yosemite Sam thinks. But that's not for individual members of Congress, or the administration to determine. And it certainly isn't for individual military officers to determine. Of course, George Will quickly dispenses with this line of thought. Responding directly to McCain's previous quote, Will asks: “Oh? No law is actually a law if presidents and senators do not "recognize" it? Now, there is an interesting alternative to judicial review, and an indicator of how executive aggrandizement and legislative dereliction of duty degrade the rule of law.”

So while the War Powers Act might be a bad law, it is certainly a law and it would seem obvious that until told otherwise by the judicial branch, or it is repealed by the legislative branch, it should be obeyed. And that puts the military, especially the military officer corps, in one hell of an ethical bind. And ethical binds like this should be avoided at all costs, because the people who face the prospect of resolving those conflicts have large numbers of armed individuals sworn to obey their orders. So the resolution might not be pretty.

In other words, our American tradition of a military subordinated to the civilian authority depends as much on the civilian leadership respecting the rule of law as it does on the military's respect of the civilian authority. I generally believe that the civilian authority has done that … until now. To avoid the prospect of losing a congressional vote over its Libyan adventure, the Obama administration has done serious damage to our civil/military tradition and has placed our military leadership in quite a quandary.

Have no doubt; the military will continue to follow the administration's orders with respect to Libya. For one, most military members find the idea of disobeying orders to be distasteful at best. And perhaps more importantly, most military members have mortgages so high-minded constitutional arguments pale beside the prospect of being summarily dismissed from the service and facing the civilian economy, which I've heard is having some problems of late.

Of course, as Leoben says, all this has happened before, and all of it will happen again. Andrew Jackson became cross-threaded with Congress and the Supreme Court when he ordered his Postmaster General to disobey a congressional mandate concerning some postal contract. In Kendall v. US ex rel Stokes, the Court pointed out that subordinate member's of the executive branch have as their first duty a responsibility to the Constitution and not simply to the President. Of course, Jackson eventually fired Kendall when he complied with the Court's order, which would have really sucked for him if the concept of the 30 year mortgage had existed in 1838.

Back here in the 21st century, there are plenty of villains to go around. I do not think that Congress has a responsibility to approve the Libya adventure in order to avoid constitutional ambiguity; to argue so would turn the legislature into a rubber stamp. But I do think that this is the inevitable consequence of a half-century of Congressional dereliction with regard to executive power in general and specifically with presidential war-making. The Cato Institute published a very good book discussing this issue in depth.

I do think that the media shares some blame; the self-appointed fourth branch of government would be doing the country a much greater service investigating this issue instead of titillating over lewd tweets. And that goes as much to Fox News and the editors of the Weekly Standard, who apparently have never met a war they didn't like, as to CNN, MSNBC, the NY Times, etc.

I am particularly disappointed in the continued silence of the Secretary of Defense.

And of course, the ultimate responsibility lies with the President. He should, in the name of Constitutional government, seek to resolve this issue as quickly as possible, even if it does result in some political setbacks. Such decisions would seem to illustrate the difference between politicians and statesmen.