March 21, 2011 | National Review Online

Boehner: ‘Before Any Further Military Commitments are Made . . .’?

Another question for our intrepid Speaker — assuming he can spare a second away from patting congressional Republicans on the back for their fearless effort to “slash” what John Hinderaker memorably figures amounts to about a third of a french fry from the Big Mac meal that is federal spending.

In admonishing President Obama that he’d better “define . . . what the mission is in Libya,” he adds that this “better job of communicat[ion]” must be done “before any further military commitments are made.” But what about the military commitments that have already been made? They include starting a shooting war against Libya — unprovoked by any attack or threatened attack on the United States. As the leader of the United States Congress, does it not bother the Speaker just a smidge that the president felt he had to get approval from the Arab League (which has now reneged) and the U.N. Security Council, but there was no need to get the assent of the peer department of the United States government that is constitutionally responsible for declaring war and for paying for the war that Obama has launched?

I argued over the weekend that our Constitution should be construed to require congressional approval if the president wants to take the nation to war under circumstances where we have not been attacked or threatened and when our vital interests are not at stake. More importantly, let’s say you think I am wrong on the constitutional law question (and as I concede in the column, this is more a political matter than a legal one). Does anyone doubt that it is terrible policy to launch a war without public support, and that the people’s representatives should be heard from — especially by an administration that takes pains to get the assent of foreign bodies?

A little more than a week ago, the Obama administration announced that it would henceforth be honoring parts of Protocol I of the Geneva Conventions, a 1977 treaty that administrations of both parties have refused to ratify because it would endow terrorists with enhanced legal rights. In announcing this decision, Secretary of State Clinton stated that the administration was acting “out of a sense of legal obligation.” That is a veiled way of saying that, because other countries follow Protocol I, the Obama administration has determined it is binding on the United States based on “customary international law.”

For the many who don’t follow these things, “customary international law” is a game in which transnational progressives (mainly, U.N. bureaucrats, Eurocrats, Democrats, self-styled human rights activists, and leftwing international law professors) get together and decide which of their pieties are so widely accepted (by themselves, of course) that they should now be deemed legally binding, even on those benighted, self-interested rubes who have not given their consent. In essence, the Obama administration is saying that customary international law trumps the Constitution’s treaty clause (which requires two-thirds Senate consent and formal presidential ratification), and overrides the gate-keeping function the Constitution otherwise assigns to Congress to decide which aspects of international law will be binding on the states and the American people.

Aren’t these aggressive executive claims of unilateral power to start wars and impose transnational legal standards something the Congress and the Speaker of the House ought to be a tad concerned about?

The full article is available here.

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