Wednesday, 23 March 2011

Congressional Approval

I'm having a hard time making sense of the question as to whether or not Obama's recent military actions  wrt Libya are constitutional. Many, like Kucinich, are arguing that they're clearly not. But it's not completely obvious to me, although the resolution of the question requires some legal analysis that I'm admittedly not qualified to carry out. An alleged justification for the action resides in the UN Participation Act, Title 22, Section 7, § 287d. Use of armed forces; limitations: "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 agreement or agreements the armed forces, facilities, or assistance provided for therein".

The question is whether the reference to " special agreement or agreements " is a reference to an Article 43 agreement, a situation which hasn't taken place under the UN. If it does, then to take action without congressional approval exists only if an Article 42 agreement occurs within the context of an Article 43 agreement. This is the argument, I believe, of Michael Lind.  But, John Whitehouse over at Jenkins' Ear blog, argues: "There are some who see an art. 43 agreement as a necessary precedent to an art. 42 action. This does not make sense by either law – why would you ever have art. 42 if you needed an art. 43 agreement with each state having to refer to constitutional processes? And if you need a an art. 43 agreement for art. 42 to take place, then Section 287d makes almost no sense. – Why would Article 43 agreements need Congressional authorization if Article 42 agreements (which specifically refer to forces) do not? It makes no sense at all."  (they link to this, as well, which I haven't read, as an argument that an article 43 agreement is required precondition for an article 42.)  (Also see, this blog.)

I'm not entirely sure who is right here. I don't think that the morality of the action rests on whether or not he has Congressional approval. Honestly, I see congressional approval as a mere formality. I don't think any of us seriously think that Congress would reject the proposal were they to put it to a vote. Obviously, even if Congress approves it, it doesn't follow that the action in Libya is prudent or the right thing to do. And Obama himself had been unequivocal about his belief that he would need congressional approval to take military action unless an immediate threat existed. It puzzles me a bit why he didn't just go ahead and get Congressional approval, frankly, but for reasons above, I'm not sure to what extent the legal obligation existed. Clarifications welcomed.

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