There are at least three reasons why the U.S. intervention in Libya is constitutional.
First, presidents possess the constitutional authority to deploy the armed forces into hostilities without prior specific authorization from Congress. Congress’s chief power over executive warmaking lies in its control over the nation’s fiscal policy, not in the Declare War Clause. Even in the 18th century, “declared” wars were uncommon, as Alexander Hamilton noted. The Declare War Clause exists primarily to enable Congress to alter international legal relations in the event of conflict, not to determine on war or peace. Past practice of the branches confirms this reading: Witness Kosovo, Haiti, the Dominican Republic, Korea, and many U.S. deployments in Latin America.
Second, it is arguable that the current U.S. intervention does not rise to the level of “war.” According to President Obama, the intervention will be very limited in duration and scope and the U.S. role in hostilities will be subordinate to that of others. Third, the War Powers Resolution can be read as authorizing the president to introduce troops into combat situations without prior congressional action for at least a 60-day period.
— Robert Delahunty is an associate professor of law at St. Thomas University.