One day after Chief Justice John G. Roberts Jr. helped President Obama bungle the oath of office on Inauguration Day 2009, the president held a do-over at the White House out of “an abundance of caution” over constitutional hiccups.
Now, lawmakers are wondering where that caution has gone.
In recent weeks, Mr. Obama has tested the limits of constitutionality by becoming the first president to approve legislation by autopen, rather than signing it himself. Now he is escalating a feud with Congress over the extent to which his powers as commander in chief allow him to pursue the war in Libya.
The autopen was used last month on a bill to extend the most controversial provisions of the USA Patriot Act. On Friday, a group of 21 House Republicans wrote the president and asked him to re-sign the legislation in person, just to remove all doubt.
“We’re seeing a pattern develop of a very casual approach to the Constitution or to current law as it exists,” said Rep. Tom Graves, Georgia Republican, who organized the letter. He said it’s “a pattern that Congress is getting frustrated with.”
The frustration is most evident on the war in Libya, where Mr. Obama is testing the limits of presidential power to commit troops.
Sunday marked the 90th day since he alerted Congress that the U.S. had commenced hostilities in Libya. According to the 1973 War Powers Resolution, Mr. Obama had either 60 or 90 days to obtain congressional approval or withdraw troops.
The House passed a resolution two weeks ago giving Mr. Obama 14 days to explain his reasoning. That time ran out on Friday.
The White House says it is not violating the War Powers Resolution because U.S. troops are only supporting a NATO effort and are not directly engaged in hostilities. That argument was laid out in a 32-page report to Congress.
Critics from both major political parties point to the hundreds of millions of dollars of munitions that have been dropped on Libyan targets and the ongoing attacks by unmanned aerial vehicles as evidence of hostilities.
House Speaker John A. Boehner, Ohio Republican, said members of Congress have repeatedly shown deference to the president, but he “has not exhibited a similar appreciation” for their role. He said House members “will review all options available to hold the administration to account.”
Rep. Dennis J. Kucinich, Ohio Democrat, last week filed a lawsuit challenging the Libyan operation in court. He said he will force the issue this week by offering an amendment to defund the military operation entirely as part of the debate over the annual defense spending bill.
The White House says the president is comfortable with his reading of the situation, and press secretary Jay Carney last week pointedly noted Mr. Obama’s credentials “as a constitutional lawyer himself.”
As for the autopen incident, the White House points to a Justice Department Office of Legal Counsel brief from the George W. Bush administration. The brief argues that it meets the Constitution’s requirement that if the president approves of a bill, “he shall sign it.”
The Bush administration did not use the method because it was still suspect. Last month, though, key provisions of the Patriot Act were in danger of expiring, and Congress delayed an extension until the last minute, when Mr. Obama was traveling in Europe.
In order to prevent the provisions from expiring, he authorized use of the autopen, which affixes his signature.
Mr. Graves, the lawmaker from Georgia who led the challenge of the autopen, said plenty of dissenters have said legislation must be signed personally. He argues that the constitutional gray area is substantial enough that the president should promise not to use an autopen again.
Asked whether the lawmakers would sue in court or take any other action, Mr. Graves said they “have other plans in place, and it’s our hope the president will abide by our request here, which is very simple, which is sign the bill as he should have.”
The White House declined this weekend to comment further on use of the autopen.
The Republicans’ solution doesn’t answer all the questions. If a court were to hold that the bill wasn’t properly signed, it still might be considered valid because the president never vetoed it. The Constitution allows for bills to become law without the president’s signature, but the period of time when the powers had lapsed could open another legal challenge.
In their letter, the congressmen - about half of whom voted for the Patriot Act extension and half of whom opposed it - said it contrasts starkly with the way the White House handled the botched oath of office in 2009, when Chief Justice Roberts transposed a word in the oath and Mr. Obama followed his lead.
A day later, the president retook the oath at the White House.
“We believe that the oath of office was administered effectively and that the president was sworn in appropriately yesterday. But the oath appears in the Constitution itself. And out of an abundance of caution, because there was one word out of sequence, Chief Justice Roberts administered the oath a second time,” White House attorney Greg Craig said at the time.
The founding generation envisioned these sorts of conflicts, and tensions among the three branches of the federal government have been common since then.
The War Powers Resolution was passed in the wake of the Vietnam War specifically to try to settle some of those nagging struggles over the commander in chief’s powers to oversee the military, vis-a-vis Congress’ specific role as declarer of war.
More recently, Mr. Bush’s vice president, Dick Cheney, tried to avoid document disclosure requests by claiming that he was not part of the executive branch, but rather was appended to the legislative branch because of the Constitution’s provision giving him power to preside over the Senate.
At other times, Mr. Cheney asserted executive privilege that would follow from being part of the executive branch.
Mr. Obama and Congress have sparred over his appointment of policy czars to oversee some of his major priorities, such as addressing climate change or trying to win enactment of health care reform.
Republicans on Capitol Hill say the president also is ignoring a 2003 law that requires him to submit a plan for trimming Medicare.
Meanwhile, Congress is missing its own targets, including its self-imposed April 15 deadline for passing a budget.