CFR.org has just posted a video interview I had the pleasure of doing yesterday with Michelle Bachelet, Under-Secretary-General and Executive Director General of UN Women. Ms. Bachelet was president of Chile from 2006 to 2010. We talked about what UN Women is seeking to accomplish and how she navigates the political and diplomatic sensitivities surrounding the issue. Read more »
Most Americans think of the Supreme Court as the legal equivalent of a baseball umpire. In their view, the Court’s job is to call legal balls and strikes, and thereby tell us what the law is. So why then is the question of whether presidents can initiate military hostilities so hotly debated?
It turns out that the Supreme Court does not see its job as most Americans do, enforcing the dividing line between the executive and legislative branches. The Court sometimes sidesteps separation-of-powers issues, especially when it comes to foreign policy. The Court has good reason to bite its tongue. However, when it comes to the war power, its silence alters the basic constitutional structure that the Framers created.
The Supreme Court hasn’t always shied away from refereeing separation-of-powers questions on foreign policy. In Little v. Barreme (1804), for example, the Court protected Congress’s war power from executive encroachment. The case arose when a U.S. naval ship seized a vessel sailing from a French port during the Quasi-War of 1798 with France. The problem was that Congress had specifically directed the U.S. Navy to seize ships heading to French ports. The captain of the U.S. ship defended his actions on the grounds that the secretary of the Navy had ordered him to seize ships regardless of whether they were bound to or from French ports. The Supreme Court rejected the captain’s defense. It ruled that the executive branch could not change Congress’s instructions, even if doing so would have been a more effective way of achieving the military goals Congress sought. Noticeably absent in the Court’s decision was any reference to the powers the president might have as the nation’s commander in chief.
President Obama has demanded that Libyan strongman Muammar Qaddafi relinquish power. Despite signs over the weekend that the Colonel’s regime may be splintering, he remains in charge. So I asked Jim Goldgeier, a professor at George Washington University and the co-author of the invaluable America Between the Wars: From 11/9 to 9/11, to look for lessons in Washington’s recent efforts at making other dictators go. What he finds is that dictators generally don’t take the hint that they should leave. They need a strong shove.
One month ago, President Obama said at a White House press conference:
You have seen with great clarity that [Qaddafi] has lost legitimacy with his people. So let me just be very unambiguous about this. Colonel Qaddafi needs to step down from power and leave. That is good for his country. It is good for his people. It’s the right thing to do.
In my posts on the constitutionality of Operation Odyssey Dawn I have looked at what the Framers said about the war power, what proponents of an independent presidential war-making authority base their claims on, and what the historical record shows about presidential decisions to use force without congressional authorization. What I haven’t done is address the question of whether the UN Security Council’s decision to pass Resolution 1973 empowered President Obama to attack Libya.
That argument may seem odd. But this past Sunday, Secretary of State Clinton suggested it in an interview on ABC News’ This Week. Host Jake Tapper asked Secretary Clinton how she reconciled her support for Operation Odyssey Dawn with this statement she made in 2007 in response to speculation that President George W. Bush might attack Iran:
If the administration believes that any—any—use of force against Iran is necessary, the president must come to Congress to seek that authority.
The Water’s Edge examines the political forces shaping American foreign policy, the sustainability of American power, and the ability of the United States to navigate a rapidly changing world.