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This is all part of the cat-and-mouse game of checks and balances. The War Powers Resolution is a check on presidential power, but the President seeks to balance this by, well, ignoring it. That's not unconstitutional; that's how our system works. The larger question is whether the War Powers Resolution is constitutional. And the Constitution is in conflict with itself here: the Commander-in-Chief clause vs. the Congress-must-declare-war clause. There's a lot of white space between these two assertions. Republicans are now questioning Obama's use of Executive power. But the greatest proponent of Executive power in modern times was George W. Bush. In fact, it was John Yoo, Deputy Assistant Attorney General in the Office of Legal Counsel for Bush, who wrote that when it came to his role as Commander in Chief, there were "no limits on the Executive's judgment." And, of course, candidate Obama was very critical of that.
Despite the fact that 10 Congressmen, including Ron Paul and Dennis Kucinich, have sued the President for violating the War Powers Resolution, this matter will not end up in the Supreme Court. Congress does not really want the responsibility of deciding whether to send troops to places like Libya. It just doesn't want the President to do so in a way that makes it look superfluous and impotent.
II. The Debt Ceiling
'The Congress shall have power ... To borrow money on the credit of the United States.'
Article I, Section 8
'The validity of the public debt of the United States ... shall not be questioned.'
14th Amendment, Section 4
No one disputes that Congress has the power to tax. That's one of the very first enumerated powers in the Constitution. The framers created a central government in part to be able to pay off the debts from the Revolutionary War. The country was broke. You might not like the power to tax, but it is one of the basic tenets of representative government. The Boston Tea Party slogan was "No taxation without representation!" It wasn't "No taxation."
There are those in Congress and beyond who suggest that the U.S.'s not raising the debt ceiling and defaulting would be a lesson to a spendthrift government not to borrow more than it can repay. But the idea that we can default on our debt is not only reckless; it's probably unconstitutional. No one is saying the debt is wise and prudent — far from it — but defaulting on it flies in the face of one of the few absolute proscriptions in the Constitution, Section 4 of the 14th Amendment: "The validity of the public debt ... shall not be questioned." The idea is that the U.S. shouldn't weasel out of its debts. It does not say that we can't undertake dumb obligations — the Constitution can't prevent bridges to nowhere — but that we need to pay off the public obligations that we do set for ourselves, whether those are Social Security payments to retirees or interest to Chinese bankers. When Congress borrows money "on the credit of the United States," it creates a binding obligation to pay that debt.
The debate over raising the debt ceiling is mostly cable-TV playacting. The party out of power is always against raising the debt limit, and the party in power is always for it. When Bush needed to raise the debt limit in 2006, then Senators Obama and Joe Biden voted against it, with Obama saying that raising the limit was "a sign of leadership failure." Since 1962, Congress has enacted 75 separate measures to alter the limit on the debt, including 17 under Ronald Reagan, six under Jimmy Carter and four under Bill Clinton. Congress has raised the debt limit 10 times since 2001. It ain't a partisan issue.
At the same time, there's nothing unconstitutional about the public debt's exceeding the size of the GDP. It's not wise, and we might look like Greece, but it's not unconstitutional. And there's nothing unconstitutional about Congress's trying to impose cuts in the federal budget to decrease the size of the debt or to bargain for cuts in order to vote to raise the ceiling. But if in the end Congress seems intent on allowing the U.S. to default on its debt, the President can assert that that is unconstitutional and take extraordinary measures to avoid it. He can use his Executive power to order the Treasury to produce binding debt instruments that cover all of the U.S.'s obligations around the world. He can sell assets, furlough workers, freeze checks — heck, he could lease Yellowstone Park. And it would all be constitutional.
III. Obamacare
'The Congress shall have power ... To regulate Commerce with foreign Nations, and among the several States.'
Article I, Section 8, Clause 3
Critics have argued that Obama's health care act takes government power to unprecedented — and unconstitutional — levels. They contend that the government can't compel us to do things, or buy things, simply because we are here. In his ruling declaring the Affordable Care Act unconstitutional, Florida federal District Judge Roger Vinson argued, "Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States."
Well, maybe. The government does require us to pay taxes, serve on juries, register for the draft. The government also compels us to buy car insurance (if we want to legally drive our car), which is a product from a private company. George Washington once signed a bill asking Americans to buy a musket and ammunition. There's nothing in the Constitution that restricts the government from asking us to do something or buy something or pay a tax — even if we don't like it.