Libya: War Powers and Congress

The power to declare war (i.e. to determine whether to go to war) is vested by the Constitution in Congress.

In theory.

In practice, Presidents increasingly unilaterally commit the country to war, with Libya being the most recent example.

Glenn Greenwald discusses the flimsy legal basis and historical context of Presidential assumption of authority to make war. Matt Yglesias makes the very valid political point that the President is able to assume Congressional power in this area because Congress wants him to.

Both of those are fine discussions but there are some other interesting implications here:

(1) Presidential war-making authority makes war more likely. As a single actor, Presidents have a lower threshold for decision making than two houses of Congress. In addition Presidents feel more responsible for the consequences of inaction.

(2) Presidential war-making is facilitated by (and, therefore, probably promotes) an excessively large military establishment. That is, because the President can bomb Libya without raising troops or procuring new weapons the President is freer to do so. Similarly, to maintain this freedom Presidents will want a larger military than would otherwise be optimal.

(3) We can't, institutionally, admit that a portion of our constitution is no longer operative. Thus, we are over time likely to conclude that Presidents may, notwithstanding the language of the Constitution commit the United States to war.

(4) The logic behind the Congressional abdication of responsibility here applies elsewhere and thus Congress will increasingly cease to be a meaningful check on the Presidency for all but the most unpopular actions.

Senator Schumer's No-Ride List for Amtrak

Last week Senator Schumer proposed a no-ride list for Amtrak, modeled after the no-fly list for airplanes. This was prompted by the fact that al-Qaeda was considering an attack on trains to to coincide with the 10th anniversary of 9/11.

While I think Senator Schumer is rather bright and capable as a Senator, this is a spectacularly bad idea on both pragmatic and libertarian grounds.

Pragmatic Objections

1. This can be fairly expensive. In addition to the need to have staff to implement id checks, in some cases stations may need to be reconfigured to ensure that boarding is not possible without passing through security.

2. We can't secure everything and if our standard is that whenever al-Qaeda contemplates a terrorist act against a class of targets we are going to try to exclude potential terrorists from that class of targets we are going to be spending way more than we can afford for the small amount of additional security.

3. This won't effectively protect train passengers because unlike an airplane if you want to harm a train being inside a train is not that much more effective than being outside. More importantly, Senator Schumer's proposal does not include commuter trains such as the New York City Subway, the Long Island Railroad or New Jersey transit. An al-Qaeda attack could avoid the security we add to Amtrak by targeting the commuter trains, which are a more attractive target in any case. Logistically, we can't check ID for commuter trains.

Libertarian Objections

1. The no-fly list is maintained in an arbitrary and secretive fashion which violates due process. There is no notice that one is on the no-fly list, no hearing before being put on it and, unless you are a United States Senator, no quick way to get off it. Further, the people on the no-fly list are there because of suspicion, not conviction of a crime. This may be necessary for airplanes, but we the more we expand the uses of this list, the more problematic this becomes.