By DOUG IBENDAHL • March 25, 2011
Earlier this week Rep. Dennis Kucinich said that President Obama may have committed an impeachable offense by sending our military into Libya without first obtaining congressional authorization.
The Ohio Democrat is not alone in criticizing Obama over intervention in Libya. Top Republicans, including Speaker John Boehner, have also been critical.
So leave it to the liberal Mark Kirk to rush to Obama’s defense.
“I think Dennis Kucinich is one of the most irresponsible, fringe members of Congress and hardly anyone in the Democratic Party, let alone the Congress listens to him,” said Mark Kirk Thursday on the Don Wade and Roma radio show.
Well when it comes to “fringe members of Congress” – it probably takes one to know one. And if that’s true – Mark Kirk should be an expert.
National Review recently posed the “constitutionality” question to a group of constitutional law experts, including the highly respected conservative scholar Ronald Rotunda. (As an aside, Rotunda was one of my favorite professors - and one of the toughest - during my law school years at the University of Illinois in the early 1990’s.)
Here is what Professor Rotunda had to say this week on the issue of U.S. military intervention in Libya. It’s hardly a ringing endorsement of the Kirk/Obama position:
Our Constitution provides that only Congress can “declare” war. The framers specifically rejected an alternative that would have said that only Congress can “make” war. Since then, America has been involved in many wars but very few declared ones. Our Civil War, the bloodiest in our history, was never “declared.” The U.N. Security Council, not Congress, approved our entry into the Korean War as well as the Libyan no-fly zone, created to prevent massacre of civilians opposing Qaddafi’s dictatorship.
Congress, in an effort to assert more control, enacted the War Powers Resolution over President Nixon’s veto in 1973. It requires the president, when he introduces American forces into hostilities, to report to Congress. Then (subject to a few exceptions), he must terminate the use of force within 60 days unless Congress approves. That provision is a legislative veto. In 1983, the Supreme Court held (in a different case) that all legislative vetoes are unconstitutional.
Ever since the War Powers Resolution became law, presidents of both parties have argued that it is unconstitutional. When they reported to Congress, they made clear that their reporting was “consistent” with the War Powers Resolution, not “pursuant” to it. President Obama used this same phrase when he reported the Libyan no-fly zone.
That is not to say that the president should ignore Congress. As a matter of policy, the president should involve the legislative branch. That did not happen here, although Obama and Biden, as senators, embraced that principle. Indeed, in 2007, Biden said it would be an impeachable offense if the president involved American forces in Iran without congressional approval.
Now, Obama and Biden only sought U.N. support. That illustrates two points: First, where you stand depends on where you sit; and second, it is easier to run for president than to be president.
You can also read what other experts had to say here.
Doug Ibendahl is a Chicago Attorney and a former General Counsel of the Illinois Republican Party.
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