And overruling his own OLC. AllahP has the story over at Hot Air:
NYT: Obama overruled top Pentagon, DOJ lawyers on Libya war powers
. . . The OLC is typically called “the president’s law firm” because it’s tasked with advising him on what he can and can’t legally do with his office. They study the law and consult with relevant agencies, and then they make a formal determination to guide his actions. That’s what should have happened here — they likely would have determined that he was violating the War Powers Act, which in turn would have forced him to go to Congress and finally request formal authorization of the mission. (In fact, Johnson, the Pentagon’s counsel, reportedly told Obama he’d be on firmer ground if he stopped the drone strikes, at least. Obama refused.) This time, because he almost certainly knew that they’d tell him that he was in violation, he bypassed the normal procedures to avoid a binding ruling and treated the OLC as if it was just one lawyer among many. He rigged the game because he knew what the probable outcome would be if he didn’t. Disgraceful.
Ironically, Boehner’s now in almost as tough a position as Obama is. He’s the one who confronted O about the War Powers Act after Kucinich forced his hand; now he’ll have to figure out what the proper congressional response to this should be. Does the House hold hearings? Vote to defund the mission, citing Krass and Johnson for authority that it’s illegal? File suit in federal court charging Obama with violating the WPA, even though any court will almost certainly refuse to rule on it on “political question” grounds? And what happens to O’s supporters on Libya in Congress, especially among Democrats, now that his warmaking has been deemed renegade by his own core legal team? This doofus almost certainly could have gotten congressional authorization shortly after the mission began if he’d asked for it, but for reasons I still don’t understand, he refused. I guess he wants to maximize his presidential prerogative to use drones anywhere he likes, notwithstanding Johnson’s assessment that that’s enough to constitute “hostilities” under the WPA, in order to give himself a free hand in Yemen and beyond. Good work, champ — you’ve now forced a high stakes, politically risky separation-of-powers confrontation with Congress over a conflict to which virtually no one has paid attention for weeks.
Volokh Conspiracy: Jonathan Adler, John Elwood.
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