When the President ordered the attack on Libya without Congressional authorization, he crossed a very bright Constitutional line read full remarks

March 31, 2011

M. Speaker:

  When the President ordered the attack on Libya without Congressional authorization, he crossed a very bright Constitutional line that he himself recognized in 2007 when he told the Boston Globe “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

The reason the American Founders reserved the question of war to Congress was that they wanted to assure that so momentous a decision could not be made by a single individual. They had watched European kings plunge their nations into bloody and debilitating wars and wanted to avoid that fate for the American Republic.

The most fatal and consequential decision a nation can make is to go to war, and the American Founders wanted that decision made by all the representatives of the people after careful deliberation.  Only when Congress has made that fateful decision does it fall to the President as Commander in Chief to command our armed forces in that war.

The authors of the Constitution were explicit on this point.  In Federalist 69, Alexander Hamilton drew a sharp distinction between the American President’s authority as Commander in Chief, which he said “would amount to nothing more than the supreme command and direction of the military and naval forces” and that of the British king who could actually declare war.

To contend that the President has the legal authority to commit an act of war without Congressional approval requires ignoring every word the Constitution’s authors said on this subject – and they said quite a lot.

There seems to be a widespread misconception that under the War Powers Act, the President may order any attack on any country he wants for 60 days without Congressional approval.  This is completely false.  The War Powers Act is clear and unambiguous: the President may only order our armed forces into hostilities under three very specific conditions: (quoting directly from the Act): “(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.”

Only if one of these conditions is present can the President invoke the War Powers Act.  None are present or alleged to be present, and thus the President is in direct violation of that Act.

The United Nations Participation Act requires specific congressional authorization before American forces are ordered into hostilities in United Nations actions.  The North Atlantic Treaty clearly requires troops under NATO command to be deployed in accordance with their country’s constitutional provisions.  The War Powers Act specifically forbids inferring from any treaty the power to order American forces into hostilities without specific congressional authorization.

The only conclusion we can make is that this was an illegal and unconstitutional act of the highest significance.

The President has implied that he didn’t have time for Congressional authorization to avert a humanitarian disaster in Libya.  He had plenty of time to get a resolution from the United Nations.  I would remind him that just a day after the unprovoked bombing of Pearl Harbor, Franklin Roosevelt appeared in this very chamber to request and receive congressional authorization. 

Some have said that the President can do whatever he wishes and that Congress’s authority is limited to cutting off funds.  War is not a one-sided act that can be turned on and off with Congressional funding.  Once any nation commits an act of war against another, from that moment it is AT WAR -- inextricably embroiled and entangled with an aggrieved and belligerent party that has casus belli to prosecute hostilities regardless of what Congress then decides. 

Finally, I’ve heard it said, “we did the same thing in Kosovo.” If that is the case, then shame on the Congress that tolerated it.  And shame on us if we allow this act to stand unchallenged any longer.

This matter strikes at the heart of the Constitution.  If this act is allowed to stand, it will fundamentally change the entire character of the legislative and executive functions on the most momentous decision a nation can make and take us down a dark and bloody road the American Founders fought so hard to avoid.

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Congressman Tom McClintock today sent the attached letter to President Obama regarding Libya:

The Honorable Barack Obama 
President of the United States
The White House
Washington, D.C. 20500

Dear Mr. President:

I have read your letter to the Speaker of the House of Representatives and the President pro tempore of the Senate dated March 21, 2011 concerning your order that United States Armed Forces attack the nation of Libya. You cite the authority of United Nations Security Council Resolution 1973 and your "constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive."

The Constitution clearly and unmistakably vests Congress with the sole prerogative "to declare war." Your letter fails to explain how a resolution of the United Nations Security Council is necessary to commit this nation to war but that an act of Congress is not.

The United Nations Participation Act expressly withholds authorization for the President to commit United States Armed Forces to combat in pursuit of United Nations directives without specific Congressional approval. The War Powers Resolution states that the President's power to engage United States Armed Forces in hostilities "shall not be inferred . . .from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities..."

The War Powers Resolution unambiguously defines three circumstances under which the President as Commander in Chief may order United States Armed Forces into hostile action: "(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." Your letter cites none of these conditions.

Nor can the power to order an act of war be inferred from the President's authority as "Commander in Chief and Chief Executive." The Constitution's Framers were explicit on this point. In Federalist 69, Alexander Hamilton draws a sharp distinction between the President's authority as Commander in Chief as "nothing more than the supreme command and direction of the military and naval forces" and the authority of the British king "which extends to the declaring of war and to the raising and regulating of fleets and armies ~ all which, by the Constitution under consideration, would appertain to the legislature."

With all due respect, I can only conclude that your order to United States Armed Forces to attack the nation of Libya on March 19, 2011 is in direct violation of the War Powers Resolution and constitutes a usurpation of Constitutional powers clearly and solely vested in the United States Congress and is accordingly unlawful and unconstitutional.

Sincerely,

Tom McClintock
Member of Congress

PDF link

Congressman Tom McClintock will conduct a town-hall meeting with
constituents in Colfax on Tuesday, March 22, at 6:00 PM.

  The meeting will be held at Colfax High School, in the theater, 24995 Ben Taylor Road, Colfax.

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WASHINGTON, D.C. - The Subcommittee on Water and Power held an oversight hearing today on “Examining the Spending, Priorities and the Missions of the Bonneville Power Administration, the Western Area Power Administration, the Southwestern Power Administration and the Southeastern Power Administration."  

Subcommittee Chairman Tom McClintock made the following opening statement at the hearing:

Today the subcommittee hears from the four federal power marketing administrations that administer our hydroelectricity.

 When we reviewed these administrations last year, I said that I wanted to know how much more is being added to our electricity bills from over-regulation, water use restrictions and mandated use of so-called alternative energy sources and what they were doing to reverse these restrictions and costs. I also said that I wanted to know what plans are underway to increase our hydro-electric resources. 

 I hope that we will get clear and accurate answers today on these critical points. 

 We should remember that in the 1940s, the cheap and abundant hydroelectricity generated in the west’s federal dams played a major role in producing the armaments and food needed to defeat our enemies in World War II.  And in the post-war years, it laid the foundation for the explosive economic growth and prosperity of the western United States.

 Federal hydropower projects and the transmission lines delivering the power continue to serve their purpose today.  But, there’s one major difference: the objective of providing abundance has been replaced by a mentality of rationing shortages and imposing wildly expensive mandates.   Litigation, regulation, federal judges turned river-masters, and mission creep are reducing project output and slamming consumers when our economy can least afford it.

 At a time when we should be empowering communities and employers to create jobs, I am concerned that these policies are adding greatly to our economic distress. 

For example:

• 3 out of 10 ratepayer dollars in the Pacific Northwest are now spent on restoring salmon habitats – over $800 million taken from ratepayers annually -- while we ignore the role that fish hatcheries play in producing and supporting abundant salmon populations at a fraction of the cost.
 
• The federal government has deliberately foregone a third of the hydropower production – or 1,000 megawatts --  at Glen Canyon Dam in the name of saving the humpback chub.  We have now discovered that this policy actually increases the predator populations that feed on the chub, and yet instead of admitting our mistakes and changing our policy, this administration seems intent on doubling down on them.

• Meanwhile, in the afflicted Central Valley of California, Central Valley Project power customers are fleeced by restoration taxes that inflate their electricity prices to the breaking point.

All of these policies make electricity more expensive.  By imposing fees on hydropower or by deliberately restricting it for pet causes of the environmental Left, this government is forcing consumers to buy ever more expensive replacement power.  The effort by the Environmental Protection Agency to radically restrict carbon dioxide will vastly exacerbate this burden.

I might also add that the Western Area Power Administration’s quest to incorporate wildly expensive solar and wind power – combined with its new borrowing authority -- threatens to erode the “beneficiary pays” principle.  Under the agency’s new borrowing authority, any defaulted loans with balances could be heaped on taxpayers. 

Instead of deliberately bypassing water away from hydropower turbines, decreasing storage capacity in the name of saving endangered fish and mandating wildly expensive and inherently unreliable generation into the grid, we need to restore as our objective the development and maintenance of abundant, affordable and reliable water and power supplies for those who actually pay the bills. 

A government that confuses rationing with abundance or that mistakes ideological sophistry with sound resource management condemns itself to increasingly painful shortages and economic distress.

The power marketing administrations before us today hold a key to restoring a new era of abundance and prosperity if they choose to do so.  Or they can plunge us into a new dark era of rationing, shortages, prohibitively expensive water and power and a dying economy.

I hope today to discover how much more power they are providing today than they were when they appeared before the subcommittee last year – and at what cost; what they have done to reduce prices for their consumers over the past year; and what they have done to relieve taxpayers from bearing costs that ought to be paid by the beneficiaries of their projects.  I would like to know what cost/benefit analysis they use to evaluate their commitment of resources.  And I would like to know what plans they have to further increase supply, decrease costs, and achieve financial independence in the future.

Congressman McClintock, budget interview on Fox Business Network.

March 10, 2011.
 

Congressman McClintock discusses the continuing resolution and the budget with Neil Cavuto on the Fox Business Network. 

March 1, 2011

WASHINGTON, D.C. – The Subcommittee on Water and Power held an oversight hearing today to examine the FY 2012 budget request for the Bureau of Reclamation.  Subcommittee Chairman Tom McClintock made the following opening statement at the hearing:

Opening Statement
Congressman Tom McClintock
Chairman
House Water and Power Subcommittee

Oversight Hearing on “Examining the Spending, Priorities and the Missions of the Bureau of Reclamation and the U.S. Geological Survey’s Water Resources Program”

With today’s hearing, the Water and Power Sub-Committee will begin the process of restoring abundance as the principal objective of America’s Federal water and power policy.  We meet today to receive testimony from the Bureau of Reclamation and the U.S. Geological Service on their plans for the coming year.  We do so in conjunction with our responsibility under the Federal Budget Act to provide guidance to the House Budget Committee as it prepares the 2012 budget and with our responsibility under House Resolution 72 to identify regulations and practices of the government that are impeding job creation and burdening economic growth.

In my opinion, all of these hearings and all of the actions stemming from them must be focused on developing the vast water and hydro-electric resources in our nation.  The failure of the last generation to keep pace with our water and power needs has caused chronic water shortages and skyrocketing electricity prices that are causing serious economic harm.

In addition, willful policies that have deliberately misallocated our resources must be reversed. 

California’s Central Valley, where 200 billion gallons of water were deliberately diverted away from vital agriculture for the enjoyment and amusement of the 2-inch Delta Smelt is a case in point.  These water diversions have destroyed a quarter million acres of the most fertile farmland in America, thrown tens of thousands of farm families into unemployment and impacted fruit, vegetable and nut prices in grocery stores across America. 

In Northern Arizona, 1,000 megawatts of hydroelectricity – enough to power a million homes – has been lost due to environmental mandates for the humpback chub.

In the Klamath, the federal government is seeking to destroy four perfectly good hydroelectric dams at the cost of more than a half billion dollars at a time when we can’t guarantee enough electricity to keep refrigerators running this summer.  The rationale is to save the salmon, but the same proposal would close the Iron Gate Fish Hatchery that produces 5 million salmon smolt each year.

Meanwhile, funds that ought to be going to water and power development are instead being squandered on subsidizing low-flow toilets, salmon festivals, tiger salamander studies and grants to private associations whose principal activity is to sue the federal government.

We have also thrown hundreds of millions of taxpayer dollars into wildly expensive conservation programs that do little or nothing to develop new water and power resources.

Those days are over. 

It is the objective of this sub-committee to restore the original – and as yet unfulfilled -- mission of the Bureau of Reclamation – to develop and utilize our nation’s vast water and hydroelectric resources to build a new era of abundance and prosperity for our nation.

And, I might add, to complete the greening of the west, to tame the environmentally devastating cycle of floods and droughts and to assure the perpetuation and propagation of all species through expansion of fish hatcheries and other cost-effective means.

We will seek to inventory all of our potential water and power resources, establish and apply a uniform cost-benefit analysis to prioritize financing for those projects that produce the greatest benefits at the lowest costs, and to restore the “beneficiary pays” doctrine that assures those who benefit from these projects pay for these projects, protecting general taxpayers of one community from being plundered for projects that exclusively benefit another.

With these policies in place, we can fulfill the Bureau’s original mission, to make the desert bloom and to open a new era in America where water and power shortages – and the policies that created them -- are a distant memory.

I also want to acknowledge the past work of the U.S. Geological Survey that produced accurate and reliable data necessary for sound resource policy and management.  Today I will merely express the expectation that it will take stronger steps to resist efforts to politicize or compromise its work.  I especially endorse Mr. Werkheiser’s statement that “the public deserves to know whether its investments are having tangible results.”

I hope that this administration will become a partner in this new era of abundance rather than an obstacle.  The rationing of shortages has never solved a shortage – only a policy of abundance can do that.  We have wasted not only money but time, and we can afford to waste no more of either.

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