Kucinich: Obama's Impeachable Offense

[JoeTheJuggler]

And I think you demonstrate why trying to extend what his answer to a specific question means is prone to all the usual bias we all bring to our interpretations. For example you could also argue that "It is always preferable to have the informed consent of Congress prior to any military action." implies that there are times when he didn't think it was required.

It doesn't imply that--it says it explicitly. (Really--read the entire quote again.)

The times when congressional authorization isn't required is when there is an actual imminent threat to the U.S. which makes it a case of self-defense. In those cases, it is preferable to get authorization, but not required.

In ALL other cases, Obama said, it is illegal for the president to order military intervention without Congressional authorization.

 

[JoeTheJuggler]

What are the steps that would have to be taken to impeach him for his acts? And on what grounds would such an impeachment be made?

The House impeaches the president by a simple majority vote. Note, however, that "impeachment" is not a finding of guilt. Once impeached, the president would be tried for the alleged crime by the Senate presided over by the Chief Justice. A 2/3 majority is required for conviction.

[ETA: as for the grounds for impeachment, the Constitution specifies "treason, bribery or other high crimes and misdemeanors". So allegation of any serious illegal act would suffice. In this case, violating the War Powers Act and/or the Constitutional requirement that Congress has the authority to declare war. That is, the constitutional legal principle Obama was referring to in his response to the question about Bush's invasion of Iraq.]

I doubt even the first step--the actual impeachment--will happen.

 

[tyr_13]

It's just one more instance of Obama lying to us.

At least Kucinich has been consistent.

Whereas neither Obama or many of his supporters (even here at JREF) can claim that now.

You obviously haven't been paying attention to this thread as many of 'his supporters' have been openly critical of this action in this very thread.

 

[BeAChooser]

You obviously haven't been paying attention to this thread as many of 'his supporters' have been openly critical of this action in this very thread.

LOL! Did I say ALL Obama supporters at JREF are being inconsisent? No. Perhaps you weren't paying attention.

 

[tyr_13]

LOL! Did I say ALL Obama supporters at JREF are being inconsisent? No. Perhaps you weren't paying attention.

No, you said 'many'. I said 'many'. At no time did I say 'all' (until just now). So no, I didn't strawman your argument.

 

[Meadmaker]

What are the steps that would have to be taken to impeach him for his acts? And on what grounds would such an impeachment be made?

To impeach a US President, a majority of the House of Representatives must vote to impeach him. At that point, he is sent to trial in the Senate. The trial is presided over by the Chief Justice of the US Supreme Court. If 2/3 of the Senators vote to convict, the President is removed from office, and the Vice President becomes President.

As for grounds, technically, there don't have to be any. Chief Justice Rehnquist wrote a book about impeachment and noted that ultimately, it was a political matter. This was, incidentally, before he served as presiding judge at the trial of Bill Clinton. However, traditionally and in practice, the President would have to be charged with a crime.

In this case, the crime would take one of two possible forms. The Constitution of the United States says that only Congress can declare war. He could be charged with unconstitutionally declaring war against Libya by taking an aggressive military act against government forces.

The whole concept of "declaring war" arose out of 18th century European customs, and is a bit dated, and presidents Truman, Kennedy, and Johnson managed to get us into what were rather obviously wars without actually declaring war, and so some Congressmen decided in the '70s a little bit more definition was needed and they passed the War Powers Act. It defines what the President can and can't do militarily and when he needs to seek Congressional authorization to do it. It would prbably be that act that Representative Kucinich would claim had been violated and therefore would create an impeachable offense.

Unfortunately, the one time anyone in Congress tried to enforce the War Powers Act, during the Iran-Iraq war when our naval forces were aiding Iraqis in defense against Iranian attack, the attempt was rejected. I never read the opinion, because that was pre internet, but it was dismissed as a polical issue by the Appeals Court.

At any rate, Obama isn't going to be impeached, at least not during this term and not for this. As Rhenquist noted, it really is a "polical mater", and the political will doesn't exist for either impeachment or conviction.

ETA: Since we now live in an internet era, I finally looked up the case. It's Lowry v. Reagan.

http://dc.findacase.com/research/wf...ac./FDCT/DDC/1987/19871218_0000272.DDC.htm/qx

It's not as stupid as I had thought. (Really, court decisions rarely are). The essence of the opinion is that if Congress thought that this was a situation where the War Powers Act applied, they could have said so by voting a declaration that the conditions existed. Instead, there was considerable debate, and no vote was taken.

 

[BeAChooser]

So no, I didn't strawman your argument.

But what you said ... "many of 'his supporters' have been openly critical of this action in this very thread" was not precluded by what I said. So why did you say "You obviously haven't been paying attention to this thread"?

 

[AlaskaBushPilot]

The UN Charter does not override the Constitution of the United States...

There are two powers of congress being usurped. The first is the declaration of war. You are right the UN "authorizes" but cannot compel.

You amend the constitution in one of two ways. Ratifying the UN charter is not one of them. Neither is passing a law in 1973 called the War Powers Act that pretends to institutionalize what lawbreaking presidents were already doing and what congress was abdicating like the cowards they are.

Article I Section 8. Congress Declares War.

The debates at the constitutional convention kept by James Madison make clear why: Kings were incessantly waging war, wasting the people's blood and treasure. So they took that power away from the executive.

But this also gave the president the power to "repell sudden invasions" since war would already be in effect.


The other power is that of appropriation. No appropriation from the treasury shall be made except by law. It is in Article I section 9.

But like previous presidents, Obama is going to spend a billion or more without congress agreeing to do it by "borrowing" from what congress appropriated money for. Bush did this when he was secretly gearing up for the Iraq war.

The reason for checks and balances is to stop both of these things from happening. There's no point to congress if a president can just do what he wants. Without checks and balances you have tyranny and it is only the hubris of ignorance that thinks this unimportant.

It is shameful to see that phony McCain preening around on talk shows talking about what the President should be doing when HE is the one that should have been meeting with all the other congressman to discuss a war resolution instead of pointing the finger at the president.

Evading responsibility is what these professionals do best.

My money is on congress clucking like the chikens they are and then telling Obama he has to report in 90 days or something completely meaningless.

Impeachment is the only way to stop presidents from doing this, but that would take more men than the two I count in congress.

 

[TragicMonkey]

Since when has bombing somewhere or lobbing missiles been something worthy of impeachment? It's not like he got a bj and lied about it.

 

[TraneWreck]

I don't think that argument will work. The UN charter lets the UNSC authorize military action. I'm not sure if the UNSC is even able to require military action (I doubt it), but they certainly didn't this time. They arguably allowed and even encouraged it, but that's not the same. So if the president is required to get Congressional authorization without the UN (and maybe he isn't, given the War Powers Act), then he would still need Congressional authorization even with UN approval. I don't see how the UN's approval can possibly substitute for Congressional authorization.

Of course, that doesn't necessarily mean that this was unconstitutional. The War Powers Act may have given him sufficient leeway. But that's got nothing to do with the UN, as far as I can see.

^^This.
The UN Charter does not override the Constitution of the United States...

I think that's likely correct, but you're not proving it here.

THe UN Charter does not override the Constitution, but it's been ratified by Congress and is the law of the land. If Congress, when ratifying, consented to future acts on the part of the security council, then there might be a legal argument that a resolution to use automatically triggers American action. Congress has pre-approved the resolution by ratifying the treaty.

This may or may not be true, but it's a question of law, not common sense. Most likely it's a question that will never be answered because it will never be litigated. The Supreme Court is the only body that can make this determination, and, once again, anyone seriously trying to answer that question needs to look at the UN Charter along with Congressional statements on its ratification.

 

[sarge]

And I think you demonstrate why trying to extend what his answer to a specific question means is prone to all the usual bias we all bring to our interpretations. For example you could also argue that "It is always preferable to have the informed consent of Congress prior to any military action." implies that there are times when he didn't think it was required.

As there are circumstances where the Presidnet is not required to seek Congressional approval prior to military action, it is almost likely that is what he did mean. Unfortunately for President Obama, this situation certainly does not qualify, and his words as a Senator now make him a hypocrit. Of course, that alone is hardly worth commenting on. I can not name a single President whose actions post-election do not contradict his words pre-election.

 

[CptColumbo]

IIRC most police actions that the US takes part in are covered by the various treaties we have signed, which must be approved by congress. So, in a way, the actions are approved by congress.

 

[JoeTheJuggler]

THe UN Charter does not override the Constitution, but it's been ratified by Congress and is the law of the land.

Trouble is, there is no way the U.N. Charter is what authorizes Obama's use of the military in Libya. In fact, one could make a pretty good argument that it forbids it, but that's a separate issue.

The U.N. resolution that authorizes this intervention was not ratified by Congress.

ETA: Here is the UN Charter: http://www.un.org/en/documents/charter/index.shtml
Where is the authorization for Obama to use military force in Libya?

 

[JoeTheJuggler]

IIRC most police actions that the US takes part in are covered by the various treaties we have signed, which must be approved by congress. So, in a way, the actions are approved by congress.

I don't think you're recalling correctly. In fact, I'm not sure where that idea came from. What treaty that Congress ratified do you think authorizes this use of military force?

I think maybe you're thinking of SOFA agreements which are usually negotiated and ratified after we have been involved militarily somewhere for some time, or at least as part of establishing U.S. military bases on foreign soil.

 

[JoeTheJuggler]

As there are circumstances where the Presidnet is not required to seek Congressional approval prior to military action, it is almost likely that is what he did mean.

Again, it's not a matter of "likely"--Obama said so explicitly.

He said that only in the case where there is actual and imminent threat to the U.S.--cases of self defense--can the president order the use of military force without congressional authorization, though such authorization in that situation is still preferable.

In all other cases, he said, it is illegal for the president to order the use of military force without Congressional authorization.

 

[TraneWreck]

Trouble is, there is no way the U.N. Charter is what authorizes Obama's use of the military in Libya. In fact, one could make a pretty good argument that it forbids it, but that's a separate issue.

The U.N. resolution that authorizes this intervention was not ratified by Congress.

ETA: Here is the UN Charter: http://www.un.org/en/documents/charter/index.shtml
Where is the authorization for Obama to use military force in Libya?

Chapter I article 2:

All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

Chapter II article 4:

Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.

Chapter V Article 25:

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

If the Congress ratifies that Charter, the argument could be made that they consent to aiding the UN in decisions it makes. That could involve sending food and medicine to a nation or using force for peace keeping purposes.

Again, this argument will be highly technical and based upon both the specific language of the charter and the statements that were made by Congress when it was ratified.

My point is simply that the argument can be made, that no one has yet provided a sufficient legal argument against it, and that the ultimate decision about how the Charter operates in relation to US law is the Supreme Court, and they will never hear such a case.

The counter would obviously be that allowing the UN to make those decisions is a defacto delegation of Congress' non delegable power to make war. I would be willing to bet that the SCOTUS wouldn't concede that much authority to the UN, but if we're talking about impeachment and unconstitutional acts, it will be a highly technical debate that won't be settled by just going off of impressions and opinions.

 

[KoihimeNakamura]

Psst:
US Code Title 30 Section 1544.

(b) Termination of use of United States Armed Forces; exceptions; extension period Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, 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

Essentially, Obama can use troops without Congress's approval for about 60 days.

ETA: Yes, Obama's a bit of a hypocrite. Maybe even a hungry,hungry hypocrite?

 

[Mike!]

Psst:
US Code Title 30 Section 1544.

Essentially, Obama can use troops without Congress's approval for about 60 days.

ETA: Yes, Obama's a bit of a hypocrite. Maybe even a hungry,hungry hypocrite?

Does that mean he's got all the marbles?

 

[JoeTheJuggler]

If the Congress ratifies that Charter, the argument could be made that they consent to aiding the UN in decisions it makes. That could involve sending food and medicine to a nation or using force for peace keeping purposes.

That's nonsense. That would be effectively changing the procedure to amend the Constitution to the decision of the U.N. Security Council, or indeed (if one takes failure to veto as the same as consent) the authority of the U.S. Ambassador to the U.N. alone. The Constitution specifies the clearly burdensome process required to amend itself.

The U.N. Charter does not authorize Obama's use of force in Libya. (Again, a very strong argument can be made that it prohibits such use. Article II prohibits intervention into domestic affairs unless there is some threat to international peace, but that's another discussion.)

Again, this argument will be highly technical and based upon both the specific language of the charter and the statements that were made by Congress when it was ratified.

My point is simply that the argument can be made, that no one has yet provided a sufficient legal argument against it, and that the ultimate decision about how the Charter operates in relation to US law is the Supreme Court, and they will never hear such a case.

Nonsense. The legal argument against it is, as I have said, that the U.N. Charter does not authorize military intervention in Libya. The U.N. resolution that does that was not ratified by Congress. Period. The U.N. resolution does not supplant or displace Congress' authority to declare war.

The counter would obviously be that allowing the UN to make those decisions is a defacto delegation of Congress' non delegable power to make war.

Only if you first concede the point that the U.N. Charter authorizes this intervention in Libya--or constructively that Congress' ratification of the U.N. charter simultaneously substitutes for Congressional ratification of all resolutions the U.N. might pass in the future.

Sorry, such an argument will never even make it to the SCOTUS because it is preposterous.

 

[JoeTheJuggler]

Psst:
US Code Title 30 Section 1544.

Not an accurate citation. U.S. Code Title 30 covers mineral lands and mining.

The War Powers Act is codified in Title 50.

And again, the limits of presidential authority are clearly outlined (pretty close to what Obama said):

(c) Presidential executive power as Commander-in-Chief; limitation
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.

So without Congressional authorization (through declaration of war or specific statutory authorization), the president can only order military intervention in the case of a national emergency caused by an attack on the U.S.

ETA: The provisions you cited require that--in those cases of emergency or what Obama called "self-defense"--the president's decision still has to be reviewed within 60 days by Congress.

Chapter 33, section 1541. Linky.