Papers
TL;DR: In 2011, the U.S. launched a new war in Libya without seeking or obtaining authority from Congress as discussed by the authors, and claimed legal support from two outside organizations: the UN Security Council and North Atlantic Treaty Organization (NATO).
Abstract: While escalating the war in Afghanistan and attempting to withdraw U.S. forces from Iraq, President Barack Obama in March 2011 opened a new war in Libya without seeking or obtaining authority from Congress. Instead, he claimed legal support from two outside organizations: the UN Security Council and North Atlantic Treaty Organization (NATO) allies. In doing so, he abandoned the constitutional principles he carefully articulated as a presidential candidate in 2007 and ignored the reality that accompanies any military commitment: the inability to anticipate or control its direction. What was announced by President Obama on March 21 as limited in its "nature, duration, and scope" turned out, not surprisingly, to be much broader in its actual operation and purpose (U.S. White House 2011a). The decision to act unilaterally without seeking congressional authority eventually forced the administration to adopt legal interpretations that were not only strained, but in several cases incredulous. Weak or not, those legal precedents are likely to broaden presidential power for future military actions. Constitutional Principles During his presidential campaign, Obama was asked by Boston Globe reporter Charlie Savage for his position on several constitutional questions. He was asked under what circumstances a president had constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress. The question was aimed specifically at the strategic bombing of suspected nuclear sites in Iran that did not involve an "imminent" threat. Obama replied, "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." He added that the president, as Commander in Chief, "does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have informed consent of Congress prior to any military action" (Obama 2007). A different picture of the war power appears in President Obama's December 10, 2009, speech in Oslo while accepting the Nobel Speech Prize. He spoke of the concept of a "just war," particularly when waged "as a last resort or in self-defense; if the force used is proportional; and if, whenever possible, civilians are spared from violence." There was no element of self-defense with military actions against Libya, which did not present any "actual or imminent threat" to the United States. In Oslo, Obama also defended the use of force "on humanitarian grounds, as it was in the Balkans, or in other places that have been scarred by war" (U.S. White House 2009, 3). Initiating Military Force in Libya Steps toward military action against Libya began with the decision of the Security Council on March 17, 2011, to pass Resolution 1973. After expressing its earlier concern about the escalation of violence and heavy civilian casualties in Libya, it established a ban on "all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians" (UN Security Council 2011, para. 6). Of course the ban did not apply to "all" flights. It covered only those by the Libyan government. Military flights by coalition forces would be necessary to enforce the ban by bombing air defense systems and other targets. Resolution 1973 authorized member states "to take all necessary measures ... to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory" (UN Security Council 2011, para. 4). "All necessary measures" are diplomatic code words for military force. …
30 citations
TL;DR: From World War II to the present, prominent scholars placed their hopes in the presidency to protect the nation from outside threats and deal effectively with domestic crises as mentioned in this paper, and the American framers of the Constitution studied those models with great care and fully rejected those precedents when they declared their independence from England.
Abstract: From World War II to the present, prominent scholars placed their hopes in the presidency to protect the nation from outside threats and deal effectively with domestic crises. Their theories weakened the constitutional system of separation of powers and checks and balances by reviving an outsized trust in executive power (especially over external affairs) that William Blackstone and others promoted in eighteenth-century England. The American framers of the Constitution studied those models with great care and fully rejected those precedents when they declared their independence from England.
26 citations
Posted Content•
TL;DR: In this paper, the authors examine the possible outcomes of changing from the current annual budget review to biennial budgeting and explore all the supposed benefits, including less time spent on budgeting issues, more accurate budget projections, reduction of congressional workload and increased congressional oversight and, for the president's point of view, increased power of the executive branch.
Abstract: This article examines the possible outcomes of changing from the current annual budget review to biennial budgeting. It looks at the experience of various states and its application to the federal level. It explores all of the supposed benefits, including less time spent on budgeting issues, more accurate budget projections, reduction of congressional workload and increased congressional oversight and, for the president's point of view, increased power of the executive branch. Concluding on a cautious note, the article offers some plausible applications of biennial budgeting to the national budget.
11 citations
TL;DR: The Continuation of Politics by Other Means: The Original Understanding of War Powers as mentioned in this paper was the seminal work of Yoo, who argued that the framers of the United States Constitution established a system which was designed to encourage presidential initiatives in war and that the executive would play the leading role in initiating and ending war.
Abstract: From his breakthrough article in the California Law Review in 1996 to the three books published after leaving the Justice Department, John Yoo has maintained consistency in his arguments for broad presidential power over national security. This article begins by summarizing the basic principles that Yoo developed in 1996 and how they have reappeared in subsequent writings. It then turns to the constitutional principles of an American republic that he takes little notice of. As a result, his constitutional model looks like the British monarchial system embraced by William Blackstone in the 1760s, rather than the republican principles promoted by the framers. The 1996 Framework John Yoo's 1996 article in the California Law Review carries this title, "The Continuation of Politics by Other Means: The Original Understanding of War Powers." (All page references in this section are to his article.) His study is lengthy and detailed: 139 pages supported by 625 footnotes. With this publication, Yoo attracted attention as a major scholar on the war power and national security law. He served as general counsel for the Senate Judiciary Committee from 1995 to 1996 and as deputy assistant attorney general in the Justice Department from 2001 to 2003. Anyone writing in this field must carefully study the framers' intent about the initiation of military force against another nation. Yoo concludes that the framers "established a system which was designed to encourage presidential initiatives in war" (174), that the executive "would play the leading role in initiating and ending war" (268), and that "the Constitution gives the President the initiative in war" (295). He qualifies that position at times by analyzing the debate over the declare war clause, when the framers inserted "declare" for "make" and recognized that the president may "repel sudden attacks." To Yoo, this debate clarifies that the president "could not unilaterally take the nation into a total war, but that he might be able to engage the nation in hostilities short of that" (264). He acknowledges that James Madison "quite presciently wanted to prevent the President from using his war powers to enhance his overall power and importance vis-a-vis Congress and the People" (266). Those qualifications are overshadowed by Yoo's repeated argument that the president has independent and plenary power to initiate war, subject to no judicial checks and to only two legislative constraints: impeachment and the power of Congress to deny funds after the president takes the country to war (174). In conflicts ranging "from Korea to the Persian Gulf, the President has acted to protect what he believed to be American national security interests abroad." Because troops and supplies are needed, the president is forced "to go to Congress before he could take military action" (296). Actually, that is not what Yoo means. President Harry Truman went to war in Korea without first seeking authority from Congress. Therefore, Yoo means that only after the president unilaterally goes to war must he come to Congress for funds to continue the military operation. As Yoo explains, "in June 1950, Truman immediately could intervene when South Korea was invaded, but he needed further appropriations for a longer-term commitment (which he sought from Congress a month later)" (296). Yoo takes the same position with other presidential wars. When President George H. W. Bush sent troops to Saudi Arabia in the fall of 1990 as part of Operation Desert Shield against Iraq, Congress could have decided not to appropriate funds. The president "cannot veto a refusal to pass an appropriations bill. All Congress had to do was nothing" (297). That is not accurate. Presidents always have access to funds not yet obligated. They need not come immediately to Congress for appropriations. Troops can be deployed and placed in harm's way. Yoo applies his analysis to initiatives by President Bill Clinton in sending military forces to Bosnia, including bombing Serbian positions. …
9 citations
TL;DR: In this paper, the authors review how the court has delimited the permissible bounds of the government's detention authority, specifically focusing on whether the court's decisions are consistent with the internment standards under the law of war, international humanitarian law (IHL).
Abstract: After the Supreme Court ruled in 2008 in Boumediene v. Bush that the detainees at the Guantanamo Bay detention facility are entitled to the privilege of habeas corpus to challenge the legality of their detention, the D.C. District Court started to take action on the hundreds of petitions filed. In these habeas proceedings, the court has faced the threshold legal question of the scope of the government’s authority to detain pursuant to the Authorization for Use of Military Force as informed by the law of war. This article reviews how the court has delimited the permissible bounds of the government’s detention authority, specifically focusing on whether the court’s decisions are consistent with the internment standards under the law of war, international humanitarian law (IHL). This analysis seeks to assess whether the court’s application of the Bush Administration’s definition of “enemy combatant” or the new definition provided by the Obama Administration is broader or narrower than the IHL standards.
6 citations
Authors
Showing all 3 results
| Name | H-index | Papers | Citations |
|---|---|---|---|
| Louis Fisher | 21 | 123 | 1664 |
| Laura M. Olson | 2 | 3 | 48 |
| Mark J. White | 0 | 1 | 0 |
Related Institutes (5)
Performance Metrics
| Year | Papers |
|---|---|
| 2019 | 1 |
| 2017 | 1 |
| 2016 | 1 |
| 2015 | 2 |
| 2014 | 2 |
| 2013 | 2 |