We Do Declare
Libya and the United States Constitution




Matthew J. Franck

In The President: Office and Powers, a classic work of constitutional law in the mid-20th century, Edward S. Corwin wrote that on the president “rests the duty to ‘take care that the laws be faithfully executed,’ a part of which law is international law. From the first, therefore, it has devolved on him to protect American rights and to discharge American duties under the law of nations; and, as commonly happens, the path of duty became in time a road to power.” Wise words, and cautionary ones.

President Obama’s war in Libya may or may not be a brilliant idea, considered purely on strategic foreign-policy grounds. But those who would rest the president’s legal authority for the operation on a U.N. resolution, on grounds that the president is responsible for “faithfully executing” international law, must answer some questions: What American rights are being protected? And what American duties are being discharged? Unlike President Reagan’s military actions in Grenada and against Libya in the 1980s, there is no pretense here of rescuing endangered Americans or of engaging in reprisals for the deaths of our citizens. So much for American rights. As for American “duties,” there is no treaty obligation or U.N. resolution that can impose any duty on the president that he would otherwise lack authority to undertake in the absence of congressional authorization. And this for the simple reason that our Constitution recognizes no political authority higher than itself, no international “humankind” whose sovereignty supersedes that of the American people.

The founding generation knew about executive warmaking, and they knew about the difference between declared and undeclared wars. Repulsion of attacks on American soil is the easy case where no one thinks prior congressional authority is required. Defending American lives overseas (and punishing attacks on them), and such plain material interests as the right of free navigation: These too are fairly easy cases. And in the modern age, being prepared to order the line held at the Fulda Gap, or (God forbid) to employ the launch codes in the nuclear “football,” are recognized necessities of the commander-in-chief power. Yet these hard realities have not altogether repealed the constitutional separation of powers. And here is another modern fact: For better or worse, the Congress is in session more than it is adjourned these days. If swift decision-making was required in the case of Libya, why were there so many days of dithering by the president when he could have been seeking some discretionary authority from Congress that he might use whenever he made up his mind? Evidently a debate at the U.N. was more important to him than a debate in the U.S. Congress.

Andy McCarthy is right: This is no business for the courts to meddle in. But here is the sum total of the president’s constitutional case for his action, from his letter to congressional leaders: “I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.” Does anyone seriously credit that as a competent statement of legitimate authority?

— Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Instituteand a regular blogger at NRO’s Bench Memos.