A Political Dispute, Not a Legal One
Trimming Obama’s Libya ambitions is a job for Congress, not the courts.


Andrew C. McCarthy

On the Corner, NR editor Rich Lowry notes that Harvard’s Jack Goldsmith, formerly chief of the Bush Justice Department’s Office of Legal Counsel (and author of the invaluable book The Terror Presidency: Law and Judgment Inside the Bush Administration), has offered characteristically valuable insights on the question of whether President Obama acted constitutionally in starting a war with Libya. In an NRO column last weekend, I contended that the president acted unconstitutionally.

As is often the case, legal commentary goes both ways on the question of when a president may unilaterally — i.e., without congressional approval — enmesh the country in armed conflict. Still, with due respect to Professor Goldsmith and other legal experts, I think there is an invalid assumption in their analyses of the Constitution’s assignment of war powers: namely, that the resulting issues are justiciable. They aren’t, nor were they intended to be.

That’s why I argue that, although President Obama’s unilateral commencement of a war against Libya is constitutionally wrong, he clearly has the power to do what he has done, for there are no legal remedies. This is a political dispute, not a legal one. Congress, if it is so disposed, will have to flex its competing constitutional muscles to rein the executive branch in. The courts should not, and almost certainly will not, intervene.

I don’t believe the Framers ever arrived at a consensus when it came to the war powers. The statements in the debates over the Constitution are all over the map. Some wanted congressional approval to be the necessary trigger for taking the nation to war. That’s why early drafts of the Constitution called for vesting Congress with the power to make war. Others realized this would be suicidal, leaving the country vulnerable to an annihilating attack while the president waited for Congress to act. That’s why the power to make war was ultimately watered down to the power to declare war.

In his excellent book The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11, University of California law professor John Yoo, another alumnus of the Bush Office of Legal Counsel, argues that the power to declare war is basically just the authority to fix the rights and privileges of belligerents and combatants under the laws of war (e.g., legitimating attacks on persons and property, permitting seizures of contraband supplied by neutrals, etc.). This enumerated congressional power would not, on this interpretation, be much of a limitation on presidential war-making — especially when the goals of a military operation are limited and fall short of “total war.”

I usually defer to Professor Yoo on matters of executive authority, but I’m not with him on this one. The Framers wanted both Congress and the president in the mix when it came to involving the country in armed hostilities. Settling on a congressional power to declare war was a compromise between those who wanted legislative dominance and those who wanted a freer presidential hand. The compromise did not resolve the tension, but it is indicative of an intention to give the people’s representatives a substantial role.