Monday, March 21, 2011
Why did the President not consult congress before authorizing the US Military to participate in the UN authorized attack of Libya? Simple, he is establishing a precedent.
This is SOP (Standard Operating Procedure) for the Obama administration. Whether it is defying court orders or having the EPA over step its authority or FCC and net neutrality, the goal is to set precedence.
This allows them to argue that they are just being consistent with precedence if they are challenged on even more divisive issues in the future. Once a court rules that the camel’s nose in the tent is legal or if no one challenges the nose in the tent, then it is much easier to bring in the whole damn camel, flies, hump and everything else. For example if the Individual Mandate in Obama Care is ruled Constitutional, then the government can use the "legality" of requiring a person to by health insurance to require them to buy almost anything.
Persuasive precedent (also persuasive authority) is precedent or other legal writing that is related to the case at hand but is not a binding precedent on the court under common law legal systems such as English law. However, persuasive authority may guide the judge in making the decision in the instant case. Persuasive precedent may come from a number of sources such as lower courts, "horizontal" courts, foreign courts, statements made in dicta, treatises or law reviews. In Civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by the courts.
Generally the idea is to set precedents that are not “too” controversial or that are not too impactful on most citizens. The attack on Libya would easily get congressional approval, but by not getting that approval for a popular action, he makes it quasi-legal to take unpopular actions, using the prior action as legal justification.