Is what we’re doing in Libya constitutional? How ought a president go about such a thing? We asked some experts.
Bill Burck
President Obama’s war in Libya is unconstitutional without congressional authorization. But that is so only because the president has not yet given us a reason to fight that is constitutionally sound. As Andy McCarthy has explained so well, the president’s constitutional power to go to war without congressional authorization is limited to circumstances in which we have been attacked or face an imminent risk of attack, or our vital national interests are otherwise at stake. President Obama has not come close to articulating any such basis for the military intervention in Libya. It appears that his strategy is to hit Qaddafi hard and fast and then get out (meaning the French and the British take over combat operations) before Congress can really take the administration to task for doing an end run around the Constitution.
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This is not to say that President Obama has done the wrong thing, morally speaking, by intervening to prevent the mass slaughter of civilians in Libya. But that does not make it legal. And that’s the administration’s fault.
President Obama could have articulated a clear basis to launch an attack. One can conceive of an argument, for example, that permitting Qaddafi to act without restraint would have sent exactly the wrong message to the rulers of Yemen, Bahrain, and other regimes under pressure that the best way to avoid Hosni Mubarak’s fate is to kill your own people without fear of intervention by the U.S. and the West. That message could have accelerated the collapse of the Middle East into a bloody regional civil war. No one could seriously question the importance to U.S. national-security interests of avoiding such an outcome.
But defining a constitutional basis for intervention would have required the administration to clearly define its objectives upfront. And that is precisely what they appear unable, or unwilling, to do. Saving civilians is, of course, a worthwhile goal, but the U.S. does not intervene anywhere and everywhere civilians are at risk, nor could we.
So what makes Libya special? The president and his advisers have no clear answer. And this helps explain the lack of leadership currently on display in prosecuting the war. It’s impossible to lead our allies effectively when the president does not have any real idea what vital national interests he is trying to defend. Defining those interests, however, would make the president responsible for the success or failure of the mission, a political risk the administration appears keen to avoid.
It is this evasion of accountability that the Constitution prevents. If the president wishes to take the nation into war, he must convince Congress that his reasons are legitimate. If he chooses not to get authorization, then he must explain the severity of the threat to justify his actions. So far, the president has done neither because it appears he does not want to lead, and ultimately be responsible for, this fight. That is no way to run a war.
— Bill Burck is a former federal prosecutor and deputy counsel to Pres. George W. Bush.
Here's the problem...All the Left has to do is go over and grab one of Bill Kristol's comments off the Standard or Fox News and say "What? You Righties saying one of YOUR guys is supporting an 'illegal war'?"
Kristol and his neo-cons keep providing CYA for Obama.
Here is a link to a copy of the War Power Resolution or Act of 1973. Wikipedia also has a nice brief writeup of it's history and constitutional repercussions.
Seems pretty clear to me. Per this law, President Obama must show an imminent threat from Libya or must ask Congress for authorization for military action. It is the law of the land.
As to whether the War Powers Act is constitutional, two points. If the President wants to challenge the constitutionality he should take it to the Supreme Court. Being the President, I will bet he would get a quick hearing. In the mean time, obey the law specifically passed to address this type of situation because of the Viet Nam War. Second, Candidate Obama virtually quoted the War Powers Act. He is on record as saying it's central provisions are constitutional and so from that point he is bound by the law unless he wants to recant what he said and challenge it in the Supreme Court.
We are supposed to be a nation of laws. Obey the laws or if the laws are wrong change the laws. Don't play with the laws.
I've got to say, it's really significant that the founders decided that congress could "declare" war, not "make" war. For those of us on the right who express fidelity to the language of the constitution, I don't know how we get around that distinction. If you doubt it, ask your wife whether there's a difference between "declaring" your love for her, and "making" love to her. See?
Then there's history, which often reveals what's practical, what's common sense. From the Barbary pirates in the 19th century, to the 20th century's conflicts in Korea and Vietnam and Grenada and all over Latin America, it's ... just the way it works.
Remember, the mere fact that the founders made a civilian, elected by the people, the commander in chief, offers the greatest protection against abuse of power as any legislation could, all the while balancing the need to avoid hasty or imprudent action with the need for quick and decisive action. And if the deployment of our armed forces turns out to be the wrong move, inevitably congress will act, usually by closing the purse. And, of course, as some point the commander in chief will have to stand for election.
As for the War Powers Act, well, as Andy McCarthy said, the courts are in no position to enforce it (assuming it's constitutional). To paraphrase another Andy (Jackson), if the supreme court doesn't like what Obama's doing, let them try to enforce it!
One need not declare war to make war. On the flip side, if Congress declared war, the President could refuse to make war. Declaring war and committing troops are two different things, and the one does not depend on the other.
I see a lot of very learned people trying to tiptoe around the noxious droppings on the carpet, to avoid dealing with the cleanup. This Administration has elevated itself to a law unto itself, which is to say lawless. This Libyan adventure is simply the most recent of a long train of abuses and usurpations which have been amply documented in these pages.
Debating legalisms and what one might do within the existing political process, short of demanding the Constitution be brought back from exile, may be worse than doing nothing. In the end such exercises do no more than cover the breach with the illusion of legitimacy, thus inviting even more aggressive behavior in lawless administrations.
The power to "declare war" does not mean recite magic words.
As in all legal analyses, we must look to the substance of what the constitutional power is conceptually, and not the mere form.
Substantively, having the power to declare war means the power to place the United States in a state of war with another party giving our armed forces the legal right and authorization, under our system, to make an attack upon a foreign party that is not defensive in nature (which may include taking action against an imminent threat to us).
If a foreign party attacks us, then that foreign party has initiated a state of war and U.S. armed forces may attack that foreign party WITHOUT a declaration of war. At that point, Congress may declare war, but it is not a constitutional necessity.
And the terms of a treaty approved as required by the Constitution may obligate the U.S. to take military actions.
That is the sum and substance of it.
Where Bill stumbles here is suggesting that Obama could make an articulation that would make the war legal. The problem is the SUBSTANCE of the circumstances, not the articulation of it.
This war is not defensive in nature. There has been no attack upon us, and no imminent threat justifying action without congressional approval.
"Sending a message to Yemen" is not, substantively, a sufficient basis to claim this war is a defensive action that does not require congressional approval under the Constitution.
Let me add that a mere casus belli, that is to say an action by a foreign party that would morally justify the United States in making war against that foreign party, is NOT co-terminous with circumstances that would allow a U.S. president to launch military attacks upon a foreign party without congressional approval under the Constitution.
The president can only act unilaterally where the other party has initiated the state of war against us (which may include taking actions to constitute an imminent threat to us), and may not launch attacks in the absence of a state of war even if there is a casus belli for doing so.
The constitutional prerogative lies with Congress to make the decision whether to act on a casus belli and place the nation in a state of war, not the president.
"The U.N. Charter is not the type of treaty that the Constitution deems “supreme Law of the Land,” and the Security Council has no constitutional status."
This is fascinating because I have heard mayn lefties use this as a justification for the "illegality" of "Bush's Wars". So, can someone explain to me, or point me in the right direction as to what the types of treaties the Constitution recognizes as the law of the land?
JonathanP - you are wrong about the Barbary States wars. Louis Fisher has painstakingly documented the various actions and authorizations in his book, "Presidential War Power." Presidents Jefferson and Madison acted generally within their constitutional roles and with congressional authorizations.
The War Powers Act is without a doubt unconstitutional, but my point is, even if it weren't... an "Act" of Congress (a law) can't trump the Constitution.
The Constitution is clear. The wording is clear. The Founders' meaning was clear. The historical context at the time was clear - as it is now to those who know their history.
@ Keith Scott --
You're chasing your tail with this one. Forget "make" vs. "declare."
We're not talking "form." We're talking AUTHORIZATION.
There's simply no doubt that only Congress has the constitutional power to authorize U.S. military attacks upon sovereign foreign nations.
(Heck... only expediency mitigates this same logic even applied to DEFENSIVE "offensive" - retaliatory - operations.)
Yes... the president is "Commander-In-Chief." Just as the Mayor of New York is "commander-in-chief" of the NYPD. Thing is... as much as Bloomy might want to... his status as Mayor doesn't give him authority to order the NYPD to "invade" New Jersey.
Got it...?
(Oh... btw... you don't know nearly as much about the Barbary Pirate Wars as you apparently think you do. I'd recommend Fisher's "Presidential War Powers" as a starting place to pursue your research. That is, if you're truly interested in finding out what you don't know.)
@ Walkinghorse --
Yep.
The Rule of Law means nothing to these people.
@ JonathanP --
See my comments to Keith.
Also... note that today's Libya is a sovereign state in terms of international law. The situation with regard to the pirates of the late 18th and early 19th centuries (and today's pirates too!) is quite different.
@ ALL --
Now putting theory aside...
(*SIGH*)
Bottom line, anything a president can get away with is "legal" in the sense of... well... him getting away with it.
A president can shred the Constitution all he wants as long as Congress doesn't stop him by impeaching him and removing him from office.
The War Powers Act is without a doubt unconstitutional, but my point is, even if it weren't... an "Act" of Congress (a law) can't trump the Constitution.
The Constitution is clear. The wording is clear. The Founders' meaning was clear. The historical context at the time was clear - as it is now to those who know their history.
@ Keith Scott --
You're chasing your tail with this one. Forget "make" vs. "declare."
We're not talking "form." We're talking AUTHORIZATION.
There's simply no doubt that only Congress has the constitutional power to authorize U.S. military attacks upon sovereign foreign nations.
(Heck... only expediency mitigates this same logic even applied to DEFENSIVE "offensive" - retaliatory - operations.)
Yes... the president is "Commander-In-Chief." Just as the Mayor of New York is "commander-in-chief" of the NYPD. Thing is... as much as Bloomy might want to... his status as Mayor doesn't give him authority to order the NYPD to "invade" New Jersey.
Got it...?
(Oh... btw... you don't know nearly as much about the Barbary Pirate Wars as you apparently think you do. I'd recommend Fisher's "Presidential War Powers" as a starting place to pursue your research. That is, if you're truly interested in finding out what you don't know.)
@ Walkinghorse --
Yep.
The Rule of Law means nothing to these people.
@ JonathanP --
See my comments to Keith.
Also... note that today's Libya is a sovereign state in terms of international law. The situation with regard to the pirates of the late 18th and early 19th centuries (and today's pirates too!) is quite different.
@ ALL --
Now putting theory aside...
(*SIGH*)
Bottom line, anything a president can get away with is "legal" in the sense of... well... him getting away with it.
A president can shred the Constitution all he wants as long as Congress doesn't stop him by impeaching him and removing him from office.
This campaign in Libya is not the same as Jefferson's response to the Barbary pirates. US ships were being attacked by the Barbary pirates. Jefferson responded.
A modern analogy to Jefferson's response would be our response to Somalian pirates. If we were to have attacked the Somalian pirates where they are based on land in Somalia when they attacked the Maersk Alabama that would have been in line with what Jefferson did, would have been constitutional and I personally wish we had done it. The way we did it, at least a Seal got some good at sea target practice.
Regarding Korea, Viet Nam and Grenada.
Starting with Viet Nam, this is the poster child of Presidential over reach and split and demoralized the country for over a decade. It prompted congress to eventually defund the war and pass the War Powers Act of 1973.
My Korean War history is weak, but we had no business in Korea without congressional approval. Don't know if Harry Truman ever got it or not. Set the precedent for Viet Nam. We are still there, spending money in an unresolved situation after 50+ years. Some good and bad things about Korea but overall, not an example of how to do it in my opinion.
In Grenada, there were US citizens at risk and the President was within his authority to protect them for a short time and get out, which he did.
Libya has not attacked us in any way that I am aware of. We are interfering with internal Libyan affairs, which may or may not be the right thing to do, but it is not the President's call alone.
The point is, that the President is allowed to defend the country when it is attacked without congressional approval. To engage in an offensive operation (DECLARE WAR) vice a defensive war is reserved for the congress. The President can MAKE WAR if it is defensive in nature. Sometimes you have to MAKE WAR to defend yourself. Despite my discussion above, it is irrelevant whether past presidents have violated this principle or not.
This was Candidate Obama's clearly stated position prior to being elected and it is one of the few times I think he has been correct.
As to what to do? Congress can enforce the War Powers Act by defunding this operation. President Obama should present his case for the Libyan action to the American people and Congress. Congress should vote it up or down as they see fit. If they vote it down or President Obama fails to ask for Congressional approval, the effort should be defunded immediately. If Congress votes for the action, they should get out of the way and allow the President and his generals to pursue the campaign as they see fit and throw their full support behind him to the maximum extent possible, providing he does nothing grossly irresponsible, cruel, illegal, etc.
While I respect that you seem to know a bit more than the average bear about history, it would pay dividends for a little closer study. Even the Wiki page on the First Barbary War contains this quote from "Presidential War Powers": "Jefferson sent a small force to the area to protect American ships and citizens against potential aggression, but insisted that he was 'unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.'"
Yes, the Constitution allows the President to take swift action to defend American citizens without waiting on Congressional approval. The Barbary War is a great illustration, but it proves the exact opposite of your argument.
Lastly, from Madison (long one): “the fundamental doctrine of the constitution, that the power to declare war including the power of judging of the causes of war is fully and exclusively vested in the legislature: that the executive has no right, in any case to decide the question, whether there is or is not cause for declaring war…In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”
According to Madison, the central doctrine of the constitution was that the man in charge of waging war was not allowed to decide when to go to war.
How far we've fallen when even those on the "right" are wrong.
(Oh, and I laughed at the NRO writer who said Obama's actions were constitutional - and then pointed to all the wars in the TWENTIETH century to prove it.)
Is this military action by President Obama constitutional?
I think most constitutional conservatives would say NO, except in cases of repelling an attack against America, interests/allies, or thwarting an imminent threat to national security. While the president is the Commander-In-Chief of the Armed Forces, Congress has the expressed authority to declare war (Article 1: Sec 8). Does this act in Libya fit any of the criteria above? No.
Did it in Somalia and Kosovo? No. Unfortunately, as we have often seen before, precedent says otherwise. Since WWII, presidents have avoided calling most of our "wars," WARS, thus avoiding the whole messy constitutional authority thing. You and I know when we've got planes bombing a country, and troops marching on foreign soil, we've got a WAR on our hands. This should not be. I would like to see more authority vested in the peoples' house, Congress- placing a higher degree of scrutiny on the Executive (with exception to imminent threat scenarios).
As far as the War Powers Resolution is concerned... it was a piece of legislation enacted toward the wrap-up of the Vietnam War, in an effort by Congress, to place a check on the Executive. Perhaps the reason there has never been a serious constitutional challenge to the War Powers Act is, because most presidents have always felt the need to succinctly build a case for military action to the people of the United States/Congress shortly after, or prior to, the initial action began.
Obama was out of the country! He went to the UN! And he still has not made clear what the heck we are doing in Libya!
Barker13: My oh my, someone woke up on the wrong side of the bed. Let's see if you "get it" ...
A "declaration of war", which you dismiss as a formality, means a great deal more than you think. If "authorizarion" is all that matters, then we should take the current course of congress and it's refusal to act when the President told them we're going to bomb Libya, and then its continued funding of the war, as "authorization".
Or do you think congress should have to pass a, uh, formal "authorization of war"?
As for "chasing my tail" by distinguishing between declaring and making war, you should know that, in the debates on the constitution, the founders "chased their tails" on this very point. You say it's merely a matter of "expediency" that this logic might not apply to retaliatory actions, but you're wrong. The decision to vest congress with the power to declare war, and not make war, was very deliberate. Madison himself moved to change the words to allow the president to "repel sudden attacks."
And there's the rub. If the President can make war without the blessing of congress to "repel sudden attacks", the same principle justifies his taking action when time is of the essence, and deliberation would take too long until the opportunity passes.
I'll make this bet with you - If Madison were alive today, when threats can materialize at a speed infinitely faster than they did in 1789, and when the damage done can be infinitely greater than anything Madison could have envisioned in 1789, and when military engagements can start and end in a heartbeat, he'd say that the distinction between making and declaring war is as vital as ever.
...And here's an anecdote to show that the more things change ...
"In March 1785, Thomas Jefferson and John Adams went to London to negotiate with Tripoli's envoy, Ambassador Sidi Haji Abdrahaman (or Sidi Haji Abdul Rahman Adja). Upon inquiring "concerning the ground of the pretensions to make war upon nations who had done them no injury", the ambassador replied:
It was written in their Qu'ran, that all nations which had not acknowledged the Prophet were sinners, whom it was the right and duty of the faithful to plunder and enslave; and that every Muslim who was slain in this warfare was sure to go to paradise. He said, also, that the man who was the first to board a vessel had one slave over and above his share, and that when they sprang to the deck of an enemy's ship, every sailor held a dagger in each hand and a third in his mouth; which usually struck such terror into the foe that they cried out for quarter at once."
Finally, "Yes... the president is "Commander-In-Chief." Just as the Mayor of New York is "commander-in-chief" of the NYPD. Thing is... as much as Bloomy might want to... his status as Mayor doesn't give him authority to order the NYPD to "invade" New Jersey."
Got it...?"
Yes, I do ... that's as ridiculous an analogy as I've heard in a long, long time.
Many of us who point out that it's not unconstitutional for the President to bomb Libya agree with you that it's not a good idea, Obama has a contempt for the rule of law, and the UN Security Council (even with a vote of 10-5) doesn't get to make US policy.
But we're not willing to try to make political hay over whether Obama is breaking the law on this point. It's not the battle worth fighting.
It's a bad decision, and Obama made it. That's enough to stick to him.
My guess is that most of the "unconstitutionalists" are also "birthers" -- trying to win an argument on a technicality because they've despaired of winning on merit or because they don't have the faculties to formulate one.
By the way, I also acknowledge that Obama hasn't presented his birth certificate. I don't think it's relevant. If you do, you have to accept that his mother was not an American citizen, which I haven't heard anyone claim.
Regardless, it's entirely possible that a US citizen can have detrimental views or exhibit poor planning, and can be held accountable for their actions, not for lack of some legalistic technicality.
