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.
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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.
What concern's me most about Obama's not obtaining a Congressional Resolution on the Libyan action is a sense that he believes a UN resolution trumps and obviates a Congressional one.
Obama does not value his own country or our constitutional separation of powers. That much is becoming crystal clear. He's not too crazy about our need to debate and discuss policies. To him, the US system of government is just one option among many - nothing special.
Didn't he muse it would be much easier to be the premier of China?
Not surprising. Obama keeps finding ways to circumvent both Congress, the Judiciary, and the American people. Czars anyone? How about the end run of regulating carbon monoxide, flouting legal rulings on offshore drilling and Obamacare.
No, the Founding Fathers did not "presume the need for a permanent army", at least in the years leading up to 1789, but they did grant congress the right to "raise and support armies" regardless of whether we're at war, i.e., they knew the need for armies would vary over time.
I do not think the Mr. McCarthy is questioning the need for a standing army in the 21st century. I believe he is saying that congress should be involved in deciding whether American blood and treasure should be spent (even though we have a funded standing army) just as if we were still in the days when congress would have to approve a special tax to raise an army. The money and the blood still belongs to the American people, even if it is already in the government coffers and the veins of professional soldiers, sailors and airmen.
I believe that President Obama was correct when he said “the president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”
This situation presents no imminent threat to the nation that I am aware. (I could of course be wrong.) It may be worthwhile or not. I can see both sides and am torn on the subject. Regardless, if the President thinks it is the right thing to do, I think he should seek congressional approval even at this late date. If he does not, I think congress should defund his effort.
I think that Presidents on both sides of the aisle have pushed their war making powers too far for what...close to a century maybe? I believe this is part of a pattern where ALL of our leaders move too fast on almost all subjects. We throw up this nonsense that SOMETHING HAS TO BE DONE about whatever is the flavor of the moment and we kneejerk all over the place doing at least as much damage as good. I also believe this creates more opportunity for special interests on BOTH sides of the aisle to manipulate and game the system, frequently for monetary gain.
Let's slow down, read the bills we write, hold the debates necessary (even if they are painful, political and nasty), obtain the proper approvals from the proper branches of government, let the checks and balances work and do less but do what we do better.
Mr. McCarthy - Well said.
According to you, Obama stated: “the president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”
How the heck does he square that with what he is doing right now?
Well, I finally found an article by Andrew McCarthy with which I disagree. I do not think any President needs Congressional authorization to commit the American military to a conflict. It's helpful if he has it (and I might ask is there a constitutional difference between a Congressional joint resolution authorizing a President to go to war and an actual declaration of war?) but not constitutionally necessary. That distinction between "make war" and "declare war" looms very large.
Understand, I am not an Obama supporter. I find Obama a weak and vacillating President posessed of a whole host of bad ideas which he thinks are good ideas. I certainly hope he's a one-termer. I'm arguing here for the Presidency in general and would aver that a President, as Commander-in-Chief, can order the US military into a combat situation without the approbation of Congress.
Andy McCarthy correctly observes that the Framers were “all over the map” on the question of a standing army. They were torn by fears of powerful, paid military units deployed throughout the country to enforce the dictates of a far-away central authority and preying on the citizenry in the process (the result of the colonists’ experience under Quartering Acts, allowing Redcoats to hang their hats in American homes on a whim). The young broke Nation was also hard pressed to sustain the financial burden of paying the salaries of thousands of officers and soldiers, particularly when languishing in peacetime garrisons. And failing to pay troops posed risks too. The Newburgh Conspiracy, foiled by George Washington in what may have been his finest moment as a warrior, saw veteran Revolutionary War officers plotting to overthrow the government to collect their back pay and pensions, a threat to the new Nation no doubt on the minds of the Framers. At the same time, the powerful professional forces of spiteful and wary Old World Superpowers – England, France and Spain – encircled the new Nation on land and sea, and fomented unrest on the frontiers.
With the historical record going in so many directions, we are left (fortunately) with the actual words of the Constitution.
A plain reading of the Constitution confirms that Congress has the authority “to raise and support Armies.” This grant of Congressional power should be read together with the Constitution’s lone reference to “the Army” (in the singular) as well as the Militia. Specifically, Article II, Section 2, establishes that the President is the Commander-in-Chief of “the Army,” an entity that, by its textual presentation, appears to have been understood by the Framers to exist in fact. There is no hint of the subjunctive mood here. The same passage also makes the President the Commander-in-Chief of the states’ Militias when in federal service. As with the raising of “Armies,” however, the Framers saw fit to create a role for Congress in terms of the Militia’s mobilization and employment. Article I, Section 8, empowers Congress to authorize the federalization of the Militia to execute the laws of the Nation, suppress insurrections and repel invasions, and to regulate the Militia when called into the Service of the United States. To be sure, the various state Militias were extant bodies at the time of the Constitution’s drafting and adoption, their existence finding further recognition in the Second and Tenth Amendments. Indeed, the organizational and disciplinary power of Congress, together with future statutory developments and Executive-friendly judicial interpretations, set conditions for the Militia (now the National Guard) to available to the President and Congress for overseas combat operations. (Thus, as a National Guard officer, I am a “reserve of the Army,” first, and a New York Army National Guardsman, second, with trips to Iraq in 2004, Afghanistan in 2008, and another planned to Afghanistan in 2012 to prove it!)
While no easy answer leaps off the pages, the Framers clearly had two objectives: (1) there would be some form of standing ground combat forces (“the Army” and the Militia) under the President’s command, and (2) Congress would fund, regulate and control to some degree the employment those forces. In this context, the plural “Armies” of Article I, Section 8, might well have been intended to refer not to the military component now known as the United States Army, but to distinct ground units (e.g. the Army of the Potomac, Patton’s Third Army) that the Congress might raise (and disband) as the Nation’s needs warranted.
Andy’s subsidiary point about the Framer’s “not presume[ing] the need for a permanent army” may be debatable. What is not open to a credible attack, however, is his primary point: Congress has a role in waging war that is grounded in the very same Constitution that gives the President his power to command.
It would seem that the reasons we are fighting in Libya are 3: 1) France, Britain and enough others have pledged to it, ie "world community"; 2) UN has approved it, ie "international law" authorization; and 3) it can be framed as humanitarian and not based on US self-interest.
This does not ryhme with Obama's claim to be a pragmatist or a realist. Given Hillary Clinton's veiled threats, it may also involve electoral calculus (wouldn't want her quitting in anger).
But, per this thread, it also shows, again, that the US Constitution is not a primary reference or revered document by Obama and his like-minded. Nancy Pelosi on constitutionality of Obamacare: "Is that a serious question?"
You (and everyone else interested in the issues at question here) should immediately go to Amazon or your favorite bookseller and purchase (and then read) Fisher's "Presidential War Powers." (Second Edition.)
Google Fisher. Google the book title.
Fascinating reading written and reasoned by a true expert.
Our government and our country as a whole has become less interested in the Constitution for a good 100 years. Seems Wilson was the first big name to really openly chafe against it and trash it. I don't think we have been reading it right or reading it at all since.
That is one of the prime benefits (yes I said benefit) of our current political climate. The strife is pushing people to read and think about the constitution again. Perhaps we can abide by it again some day. In any event we all need to read it ourselves and encourage others to read it, especially before we vote. It is a pretty radical document.
But you haven't made any argument for why you think it's unconstitutional. And while you've acknowledged the main arguments in favor of it's constitutionality, you haven't countered any of them.
Your sole defense is:
"What if the Framers expected that someday there would be no standing army? If so, then they must have wanted the president not to use an existing army if one actually happens to exist."
Those are two ridiculous assumptions completely unsupported by evidence, and contrary to both common sense and empirical evidence.
First, there was a standing army when they wrote it, and continuously afterwards. With what army do you suppose Washington put down Shay's Rebellion and the Whiskey Rebellion?
Second, the Constitution specifically provided for the funding of armies, and specifically limited it's funding to two year intervals (and thus the biennial budget we have to this day) to explicitly empower Congress increase or reduce (or even potentially eliminate) the size & strength of the military as needed, to control the scope within which the president has power to exercise military force.
Third, the War Powers Act of 1793 (shortly after the ratification of the constitution), anticipated just such actions as those currently taken in Libya by creating provisions limiting the use of extra-congressional military force, to wit, notification to Congress within 48 hours, and withdrawal of troops and cessation of hostilities within 60-90 days without congressional approval.
Fourth, the preponderance of evidence from real world conflicts and supreme court decisions throughout the ensuing 200+ years that run specifically counter to your claims of the unconstitutionality & illegality of a presidential decision to use force outside the scope of a declaration of war.
The right of the President to use military force extends at least from the shores of Tripoli in 1801 to the skies above it in 2011.
I don't approve of the intervention in Libya on moral and strategic grounds, but I accept the legal & constitutional power of the President to do so, even while questioning his wisdom. That said, a vote of Congress would've been a good thing, and might have diplomatically accomplished as much or more as the UN resolution
I have not heard a peep from John Boehner. We've got Dennis Kucinich yelling for Obama's head, but we don't have Republican leaders calling Obama out on this raw assertion of power.
Andrew,
Thank you for your work. A good president relative to the situation in Libya and the intended war protocol by the framers may be how President Jefferson handled war against the Barbary pirates. Do you know whether he consulted with congress before we occupied Tripoli?
Thank you.
The War Powers Act of 1973 limits the presidential use of the military to defensive measures as well as the limitations you listed. This was in response to the Viet Nam War. Richard Nixon vetoed the bill and Congress over rode the veto inacting it as law. The law has not been challenged up through the Supreme Court, although some think it is unconstitutional.
Are we defending ourselves from Lybia?
Mary Grabar,
I think your comment about John Boehner is interesting, because this seems to be one of those rare issues that does not divide itself along party lines. In my view, both parties have been over reaching for a very long time.
Defending and obeying the constitution must be a core belief and practice of the Republican party. It is not only the right thing to do and good for the country but it provides an intellectual rigor and moral and behavioral compass that is currently missing in the Republican party. Defending the constitution in word and deed is also good politics because it funnels Republicans into shrinking the power, size, and cost of the presidency and federal government and restoring the power of state government and the individual.
There is no doubt that the founders were worried about the threat that the military posed to our liberty and were even conflicted about the advisability and cost of maintaining a standing army (as opposed to mobilizing the militias from the states).
The writers of the constitution were quite worried about a runaway president and attempted throughout the constitution to always have a balance of power and checks and balances to prevent tyranny.
Specifically regarding the power to wage war, the constitution balanced the power of the president and congress by giving congress the power to initiate and fund war and giving the president the power to manage the war effort.
It is mind boggling that constitutional scholars think that the constitution permits presidents to wage war unilaterally without consulting congress. They are obviously either clueless about the design and purpose of the constitution or are cynically producing a constitutional opinion that is highly politicized.
Obviously, if the USA is attacked, that creates a state of war so no declaration of war by congress is necessary prior to self defense.
What is particularly hilarious is that our current president and vice president just a few years ago, back when they were senators, were absolutely certain that the constitution requires that presidents must have the approval of congress before they start a war.
Here are a couple of links to reviews/summaries of John Hart Ely's "War and Responsibility" and "Presidential War Power" by Louis Fisher:
The current debacle in Libya is a near-perfect illustration of the need for a clear delineation of Presidential power to engage the USA in a military conflict. Certainly, had Obama initiated a request to Congress concurrent with the initiation of the UN resolution process, he would have had a clear answer from Congress almost immediately after the UN vote. My own fervent hope would be that Congress would have rejected his hare-brained and half-cocked blunder, by requiring answers to the questions that are only now being asked.
My reading of the War Powers Act indicates that Obama broke the law, because it only allows emergency military action in response to a "national emergency" due to an attack on the United States, its territories, or the armed forces. Very clear and specific, and not even a mention of either the United Nations or international legal theories.
Going to war always has grave implications, unexpected consequences, and for some Americans, a fatal outcome. The decision should not be an impulsive foray, casually phoned in on the way to the airport.
Aside from the Constitutional issue, the authorization of Congress to use force can be a very compelling lever to use in negotiations. What bigger stick can anyone carry than the threat of a full-on attack from the greatest fight force this world has ever known.
Why would anyone who wishes for a diplomatic solution want less? External Link
