I will attempt to lay out a case for the impeachment of our 44th President that, had the Congress any integrity at all, would surely result in the filing of Articles of Impeachment and likely a successful conviction in the Senate. I will also make a brief argument for the timing of this, should Boehner grow a pair.
A couple disclaimers up front: I am not a lawyer, nor what most people would recognize as a “scholar” of the Constitution—i.e. I do not have a degree in Government or Law, with an emphasis on the Constitution. What I do have is a pretty good grasp of political philosophy and philosophy in general, which is certainly adequate for an understanding of the Constitution as intended by Madison and the other framers. I will not be seriously entertaining penumbras and other such perversions of the original language as understood at the time of passage of the Constitution or the relevant Amendments.
Two relevant links here. This is the full text of the U.S. Constitution and here is the text of the War Powers Resolution (sometimes also called the War Powers Act).
It is also important to note that the Constitutionality of the War Powers Resolution is itself an open question.
Okay, enough with the pre-game, on to the matter at hand.
Article I, Section 8 states:
The Congress shall have Power To . . . declare War
“But Crank,” one could reasonably point out, “Korea and Vietnam did not have a formal declaration of war.” And that is true on its face. In fact, it is more than true in regards to Korea, where Truman did not even seek retroactive Congressional approval, and would have been grounds for impeachment had Congress pursued the matter. However, the Gulf of Tonkin Resolution did give LBJ the blessing of Congress to use the “conventional military” in Vietnam.
Due to the FUBAR messes of Korea and Vietnam, in 1973 Congress passed the War Powers Resolution over the veto of President Nixon. I will quote the most relevant portions of this blessedly brief bill.
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances . . .
Section 4(a) begins:
In the absence of a declaration of war, in any case in which United States Armed Forces are introduced--
and continues in paragraph 3:
. . . the president shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth--
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.
Finally, Section 5(b) states:
Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.
Okay, a fair bit of verbiage there, so I'll break it down based on what seems to be pretty unambiguous language. Article I, Section 8 is completely self-explanatory, stating that declarations of war are among the Congress's enumerated powers, and thus is the only branch of government with the authority to declare war. So far, so good. The War Powers Resolution seeks to carve out a space for the Executive Branch to act in response to a fast-developing situation without a prior Congressional authorization for war, presumably to keep the country from being bushwhacked (see also Harbor, Pearl).
Section 2 of the WPR specifies that the President must have a war declaration, a separate bill authorizing military force (ala Gulf of Tonkin Resolution), or “a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces.” Note that this is not a suspicion of a pending attack, and that it must rise to the level of a national emergency created by said attack. Libya did not rise to this level, and Syria does not either.
Section 3 requires that if circumstances indicate pending hostilities, then the President shall consult with Congress if possible prior to commencement of hostilities. This was clearly possible in Libya. Until this past weekend, it seemed quite likely that Obama was not going to consult Congress.
Section 4 requires that the President submit in writing to the House and Senate within 48 hours of hostilities commencing a report that includes the circumstances that required involvement, the legal justification for involvement, and the expected level of involvement and the goals of the involvement. This did not happen with Libya.*
Section 5 states that the President has 60 days from the time specified in Section 4 to either get Congressional approval to continue the military involvement or GTFO, though he may take another 30 days to get the military out provided he gives a written justification to that purpose to Congress. This also did not happen with Libya,* with Operation Odyssey Dawn and Operation Unified Protector lasting from 3/19/11 to 10/31/11, which is considerably longer than 60 days.
So, where does all this leave us? Well, as I've outlined here, President Obama violated at least 4 separate sections of the War Powers Resolution with respect to Libya. That makes Libya an illegal war (well, use of the armed forces in combat, it was pretty one-sided). The War Powers Resolution is the only currently accepted framework for the use of the military without a preceding Congresssional declaration of war or other legislation authorizing the use of the military. Therefore, President Obama has also violated the separation of powers and overstepped the authority of the Executive. The facts, as they say, speak for themselves.
How does Syria fit into this? At the time I am writing this, Obama has not yet begun bombing Assad's regime. If he does so without Congressional authorization, he is in violation of WPR Section 2 by my reading. If he follows the pattern with Syria that he did with Libya, he will also be in violation of Section 4. Section 5 would likely not apply in Syria as no one expects that anything will go beyond a couple days of lobbing missiles at targets from offshore or outside the SAM envelope.
When I began writing this post last week, it appeared Obama was prepared to launch unilateral action without consulting Congress. If Congress does vote to attack Syria (which seems unlikely to me), then the remaining portions of this post regarding Syria are null and void. The remainder of the post assumes that Congress votes against military action.
If/when Obama attacks Syria without abiding by the WPR, that is the perfect impetus for initiating impeachment. However, the major thrust (for the purpose of this post) would be from Libya. Given the facts of the case, there is no question that Obama is guilty of an illegal military action, and such a verdict in the Senate should be a foregone conclusion. There are three possible outcomes, none of which are good for Obama or Democrats.
Outcome 1 is that he is found not guilty of launching an illegal military action contra the requirements of the WPR, for which the facts speak for themselves. A first-year law student could successfully prosecute this with his textbooks behind his back, and an acquittal would expose the basest political motives among those who do not vote for a guilty verdict. Any (D) Senator in a state that is even tinged purple should rightfully be toast in the next election.
Outcomes 2 and 3 both hinge on that Obama is found guilty, and appeals to the Supreme Court** on the grounds that the War Powers Resolution is unconstitutional. If the WPR is found constitutional, then the guilty verdict would stand. If the War Powers Resolution is found unconstitutional—then Obama has violated the separation of powers as outlined in Article I, Section 8, and would still be guilty of an impeachable offense. The WPR would also have been overturned, preventing further unapproved military action. In this scenario, I expect that Congress will come up with a new version of the WPR to allow rapid response in emergency situations that would pass a constitutionality test.
When should the House file Articles of Impeachment? I would argue that it should take place 48 hours and 1 minute after the initiation of hostilities against Syria, assuming that Obama does not meet his obligations in Section 4 of the WPR. That would allow for another count in the Articles and would show that Congress is in fact deadly serious about separation of powers. If Obama does not attack Syria, then the Libya actions are themselves sufficient, in my opinion, for trial and conviction.
Now, I am aware that there are numerous other scandals that could be used as fodder for impeachment proceedings against Obama, but those are beyond the scope of this post. I believe that Benghazi, Fast and Furious, and the NSA scandals should all have a place in the Articles as well. I'd like to also see Solyndra and the IRS thrown in there, but those are more complicated cases to make from where I'm sitting. As a side benefit, Articles could also be filed against Eric Holder for Fast and Furious, enforcing the illegal DREAM act executive order, and the New Black Panther Party case, and against Hillary Clinton for Benghazi.***
*As far as I know—I'm pretty sure that this would have gotten significant talking head coverage if Obama had gotten Congressional authorization. I remember plenty of talking head coverage that he did not do this, and even Wikipedia notes that Obama never received authorization, so I'm fairly confident in asserting this.
**I'm not sure if impeachment can be appealed, but rest assured that the WPR will end up before the Supreme Court at some point if Obama is impeached on these grounds.
***Yes, I realize Hillary is not in office. But a guilty verdict could bar her from holding any office in the future.