Could Obama be Impeached?

An interesting question has surfaced recently. Could Obama be impeached for violating the War Powers Act of 1973 with his actions in Libya?

The WPA requires the president to notify Congress within 48 hours of taking military action and requires congressional approval within 60 days if hostilities continue. The WPA also outlines the circumstances under which a president can engage the military. It describes three scenarios for the engagement of the US military.

“The constitutional powers of the President as Commander-in-Chief to introduce the 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 a declaration of war, a specific statutory authorization, or a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

Note that the bill is from 1973, in the wake of the Vietnam War.

The constitutionality of the WPA is a topic of modern debate. Let’s look at that first before exploring whether Obama’s violating it.

Congress is empowered to, “Declare War […] and make Rules concerning Captures on Land and Water,” per Article 1, Section 8. Congress is also empowered therein to make all laws “necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” aka the Necessary and Proper Clause.

On the executive side, Article 2, Section 2 starts by saying, “The President shall be Commander in Chief of the Army and Navy of the United States.”

I can understand the constitutional question. It’s a separation of powers issue, but I don’t see this law as unconstitutional. As I’ve said before, Congress has the power to declare war, but the executive has power to wage war. The WPA is intended to simultaneously allow the president to take necessary actions to defend America in the event of an attack or emergency and prevent the president from the wanton use of the military. I believe the wording of the law is successful and constitutional in this context. It is designed as a check on executive power via the legislature.

Regardless of its constitutionality, the WPA is on the books (for now). As such, we have to ask the question of whether Obama’s in compliance. First, Obama’s ok on the time constraints. As I understand it, he notified Congress within 48 hours and we’re not at the 60-day mark yet, so he’s fine for now. Obviously, a declaration of war and a specific statutory authorization aren’t applicable here, so we’re looking at the emergency criteria.

Now, we need to ask another question. Does Libya constitute, “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces?” I don’t believe it does. Gadhafi and his forces didn’t attack the United States directly, nor did they attack any of our territories, possessions, or military. In order for this criteria to be upheld, Gadhafi would have to attack us in some capacity. As far as I know, he has not, and it appears to me that Obama introduced our military to the hostilities.

Yet, there is another loophole for the president. The WPA is very clearly referring only to the US military. It repeatedly refers to, “The United States Armed Forces.” This typically excludes the CIA. So, basically, using the CIA is ok, but using the military isn’t. That’s a very important point to note, and it’s a bit unsettling to know the CIA is unchecked like that. Theoretically, the CIA could arm, train, finance, and fight alongside Gadhafi’s opposition indefinitely.

Is it a noble endeavor to intervene and prevent the slaughter of thousands of people? Absolutely. One can easily and strongly argue that it’s in our best interests to do so. However, the fact of the matter is the WPA does not allow the president to commit our military for such a mission. Thus, as the law is written, I believe Obama has acted illegally and there are grounds for impeachment.

I don’t think Obama’s going to be impeached over it. I’ve seen no meaningful momentum for it and I don’t think the GOP wants to go there. One could certainly argue the law needs to be updated, perhaps to allow military intervention in situations like Libya or perhaps to check the CIA. Regardless, it’s something that needs to be discussed.