Rich Lowry of National Review writes the epitaph for the War Powers Act of 1973 today, after it was ignored to death by President Obama, who used to support it.
Lowry sheds no tears as he stands over the chalk outline at the scene of the WPA’s murder. “President Obama isn’t doing his reputation for consistency or the legal theories of his supporters any favors,” he writes, “but he is paying a backhanded compliment to the Constitution. The War Powers Act is an excrescence on the American constitutional order that deserves to be the dead letter that President Obama is making it.”
“The president’s inherent powers as commander in chief do not depend on affirmative acts of Congress,” Lowry explains. “What Congress can do is wield its own powers – most decisively the appropriation of funds – to limit or end a military action.”
So the President can just throw troops around as he sees fit, and Congress can eventually try to stop him by refusing to fund the troops? Lowry concedes that model of Congressional restraint doesn’t work very well, describing it as “the cowardly fighting the disingenuous” over Libya.
Whatever the political circumstances of its passage as an iron maiden forged by Democrats against Richard Nixon, the basic idea behind the War Powers Act – getting the entire government on the same page before launching a war, with generous allowances for the Commander-in-Chief to deal with immediate attacks on the United States or its vital interests – seems sound, especially after watching the bizarre misadventure of the Libyan war unfold.
Maybe there’s a better legislative approach for doing that. Perhaps the WPA never passed Constitutional muster, and never should have been passed in the first place. But let me ask everyone who celebrates its death at the hands of President Gutsy Call a question: if the War Powers Act can be discarded by fiat from the Oval Office, why can’t the next president summarily dismiss the Patient Protection and Affordable Care Act in precisely the same way?
Shouldn’t Congress study a law carefully for its constitutionality before passing it, reading every single clause and projecting every logical ramification? If they don’t, isn’t there some sort of “Supreme Court” that would act quickly to consider a law involving trillions of dollars and the lives of citizens, and rule on its Constitutional validity in a timely manner?
The unhappy life and quiet death of the War Powers Act embodies all of the failures and logical inconsistencies that have brought our current system of government to the edge of ruin. Rich Lowry notes that “if this were the Bush Administration, Nancy Pelosi would be agitating for impeachment.” He’s right, and that means the restrictions against government are enforced entirely through political power, not logic or the law. The WPA was applicable only against Presidents who lacked the political and media support to ignore it.
When power exists without iron restraint, the result is a government that can indulge its whimsy. For example, a President can unilaterally launch a war against Libya while he’s taking a junket through South America, and promising to fund energy development he had declared illegal for Americans. Tyranny is always whimsical, and whimsical government always becomes tyrannical. We live now beneath a system created through arrogance, rather than informed debate. No ordinary citizen is allowed to ignore laws he finds inconvenient, or personally judges to have been poorly written.
Our system of government provides lawful and orderly methods for getting rid of an “excrescence on the American constitutional order.” In the case of the War Powers Act, we had the better part of forty years to employ them. The manner of its death is at least as offensive as the circumstances of its birth.