WASHINGTON — President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.
Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.
But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.
Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.
If the president does it, it's legal.
That's the Obama theory of executive power.
That was George W Bush's too.
No wonder Arne Duncan thinks he can extort states to agree to his Race to the Top guidelines if they want waivers to the NCLB regulations that will soon have 90% of the nation's schools declared "failing."
Under the Obama theory of governance, cabinet secretaries get to make law or change the ones they don't like.
But that just ain't right.
As Rick Hess pointed out here, cabinet secretaries are not given the constitutional powers to make law.
Neither is the president.
The Congress is.
And even if the president or his cabinet secretaries think that the Congress is not acting in a timely manner to legislate, the Constitution does not give them the power to create law in the Congress's place.
Just as the Constitution doesn't give the president the right to declare war.
But I guess following the Constitution is an archaic practice these days.
People who want the president to follow the Constitution in matters of war and domestic policy are hopelessly wedded to the status quo and just don't care about the nation's security and welfare.
And one only have one shot to educate our kids or save the Libyan people, so we just can't afford to wait for the Congress to act on these matters.
This is what empire looks like when it is heading toward fascism and autocracy.