Obama’s fidelity to oath on au­topi­lot?

The Washington Times Weekly - - Politics - BY STEPHEN DI­NAN

One day af­ter Chief Jus­tice John G. Roberts Jr. helped Pres­i­dent Obama bun­gle the oath of of­fice on In­au­gu­ra­tion Day 2009, the pres­i­dent held a do-over at the White House out of “an abun­dance of cau­tion” over con­sti­tu­tional hic­cups.

Now, lawmakers are won­der­ing where that cau­tion has gone.

In re­cent weeks, Mr. Obama has tested the lim­its of con­sti­tu­tion­al­ity by be­com­ing the first pres­i­dent to ap­prove leg­is­la­tion by au­topen, rather than sign­ing it him­self. Now he is es­ca­lat­ing a feud with Congress over the ex­tent to which his pow­ers as com­man­der in chief al­low him to pur­sue the war in Libya.

The au­topen was used last month on a bill to ex­tend the most con­tro­ver­sial pro­vi­sions of the USA Pa­triot Act. On June 17, a group of 21 House Repub­li­cans wrote the pres­i­dent and asked him to re-sign the leg­is­la­tion in per­son, just to re­move all doubt.

“We’re see­ing a pat­tern de­velop of a very ca­sual ap­proach to the Con­sti­tu­tion or to cur­rent law as it ex­ists,” said Rep. Tom Graves, Ge­or­gia Repub­li­can, who or­ga­nized the letter. He said it’s “a pat­tern that Congress is get­ting frus­trated with.”

The frus­tra­tion is most ev­i­dent on the war in Libya, where Mr. Obama is test­ing the lim­its of pres­i­den­tial power to com­mit troops.

June 19 marked the 90th day since he alerted Congress that the U.S. had com­menced hos­til­i­ties in Libya. Ac­cord­ing to the 1973 War Pow­ers Res­o­lu­tion, Mr. Obama had ei­ther 60 or 90 days to ob­tain con­gres­sional ap­proval or with­draw troops.

The House passed a res­o­lu­tion three weeks ago giv­ing Mr. Obama 14 days to ex­plain his rea­son­ing. That time ran out on June 17.

The White House says it is not vi­o­lat­ing the War Pow­ers Res­o­lu­tion be­cause U.S. troops are only sup­port­ing a NATO ef­fort and are not di­rectly en­gaged in hos­til­i­ties. That ar­gu­ment was laid out in a 32-page re­port to Congress.

Crit­ics from both ma­jor po­lit­i­cal par­ties point to the hun­dreds of mil­lions of dol­lars of mu­ni­tions that have been dropped on Libyan tar­gets and the on­go­ing at­tacks by un­manned aerial ve­hi­cles as ev­i­dence of hos­til­i­ties.

House Speaker John A. Boehner, Ohio Repub­li­can, said mem­bers of Congress have re­peat­edly shown def­er­ence to the pres­i­dent, but he “has not ex­hib­ited a sim­i­lar ap­pre­ci­a­tion” for their role. He said House mem­bers “will re­view all op­tions avail­able to hold the ad­min­is­tra­tion to ac­count.”

Rep. Den­nis J. Kucinich, Ohio Demo­crat, two weeks ago filed a law­suit chal­leng­ing the Libyan op­er­a­tion in court. He said he will force the is­sue by of­fer­ing an amend­ment to de­fund the mil­i­tary op­er­a­tion en­tirely as part of the de­bate over the an­nual de­fense spend­ing bill.

The White House says the

“We’re see­ing a pat­tern de­velop of a very ca­sual ap­proach to the Con­sti­tu­tion or to cur­rent law as it ex­ists,” said Rep. Tom Graves, Ge­or­gia Repub­li­can. He said it’s “a pat­tern that Congress is get­ting frus­trated with.”

pres­i­dent is com­fort­able with his read­ing of the sit­u­a­tion, and press sec­re­tary Jay Car­ney point­edly noted Mr. Obama’s cre­den­tials “as a con­sti­tu­tional lawyer him­self.”

As for the au­topen in­ci­dent, the White House points to a Jus­tice Depart­ment Of­fice of Legal Coun­sel brief from the Ge­orge W. Bush ad­min­is­tra­tion. The brief ar­gues that it meets the Con­sti­tu­tion’s re­quire­ment that if the pres­i­dent ap­proves of a bill, “he shall sign it.”

The Bush ad­min­is­tra­tion did not use the method be­cause it was still suspect. Last month, though, key pro­vi­sions of the Pa­triot Act were in dan­ger of ex­pir­ing, and Congress de­layed an ex­ten­sion un­til the last minute, when Mr. Obama was trav­el­ing in Europe.

In or­der to pre­vent the pro- vi­sions from ex­pir­ing, he au­tho­rized use of the au­topen, which af­fixes his sig­na­ture.

Mr. Graves, the law­maker from Ge­or­gia who led the chal­lenge of the au­topen, said plenty of dis­senters have said leg­is­la­tion must be signed per- son­ally. He ar­gues that the con­sti­tu­tional gray area is sub­stan­tial enough that the pres­i­dent should prom­ise not to use an au­topen again.

Asked whether the lawmakers would sue in court or take any other ac­tion, Mr. Graves said they “have other plans in place, and it’s our hope the pres­i­dent will abide by our re­quest here, which is very sim­ple, which is sign the bill as he should have.”

The Repub­li­cans’ so­lu­tion doesn’t an­swer all the ques­tions. If a court were to hold that the bill wasn’t prop­erly signed, it still might be con­sid­ered valid be­cause the pres­i­dent never ve­toed it. The Con­sti­tu­tion al­lows for bills to be­come law with­out the pres­i­dent’s sig­na­ture, but the pe­riod of time when the pow­ers had lapsed could open an­other legal chal­lenge.

In their letter, the con­gress­men, about half of whom voted for the Pa­triot Act ex­ten­sion and half of whom op­posed it, said it con­trasts starkly with the way the White House han­dled the botched oath of of­fice in 2009, when Chief Jus­tice Roberts trans­posed a word in the oath and Mr. Obama fol­lowed his lead.

A day later, the pres­i­dent re­took the oath at the White House.

“We be­lieve that the oath of of­fice was ad­min­is­tered ef­fec­tively and that the pres­i­dent was sworn in ap­pro­pri­ately yes­ter­day. But the oath ap­pears in the Con­sti­tu­tion it­self. And out of an abun­dance of cau­tion, be­cause there was one word out of se­quence, Chief Jus­tice Roberts ad­min­is­tered the oath a sec­ond time,” White House at­tor­ney Greg Craig said at the time.

The found­ing gen­er­a­tion en­vi­sioned these sorts of conflicts, and ten­sions among the three branches of the fed­eral gov­ern­ment have been com­mon since then.

The War Pow­ers Res­o­lu­tion was passed in the wake of the Viet­nam War specif­i­cally to try to set­tle some of those nag­ging strug­gles over the com­man­der in chief’s pow­ers to over­see the mil­i­tary, vis-a-vis Congress’ spe­cific role as de­clarer of war.

More re­cently, Mr. Bush’s vice pres­i­dent, Dick Cheney, tried to avoid doc­u­ment dis­clo­sure re­quests by claim­ing that he was not part of the ex­ec­u­tive branch, but rather was ap­pended to the leg­isla­tive branch be­cause of the Con­sti­tu­tion’s pro­vi­sion giv­ing him power to pre­side over the Se­nate.

At other times, Mr. Cheney as­serted ex­ec­u­tive priv­i­lege that would fol­low from be­ing part of the ex­ec­u­tive branch.

Mr. Obama and Congress have sparred over his ap­point­ment of pol­icy czars to over­see some of his ma­jor pri­or­i­ties, such as ad­dress­ing cli­mate change or try­ing to win en­act­ment of health care re­form.

Repub­li­cans on Capi­tol Hill say the pres­i­dent also is ig­nor­ing a 2003 law that re­quires him to sub­mit a plan for trim­ming Medi­care.

Mean­while, Congress is miss­ing its own tar­gets, in­clud­ing its self-im­posed April 15 dead­line for pass­ing a bud­get.


Re­mem­ber, I’m a con­sti­tu­ional lawyer: Pres­i­dent Obama

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