We Do Declare
Libya and the United States Constitution


Richard Klingler

Is the use of U.S. armed force in Libya consistent with the Constitution? As a matter of law, yes — if less clearly as a matter of principle.

Article II of the Constitution grants the president, as Commander in Chief, broad authority to direct the use of force abroad to protect U.S. national-security interests. Whatever the bounds of that authority, the current strikes in Libya fall comfortably within the established understanding of presidential power developed and exercised repeatedly over the past century and more — even in the absence of express congressional authorization. Separation-of-powers principles still apply: Through funding and ongoing accommodations of the Executive, Congress must support any significant use of force.

Contrast this basis of authority with two others pressed by the president’s defenders. The Security Council’s action is irrelevant, even if the president devoted paragraphs to it in his letter to Congress. 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. Separately, Congress sought to restrict, not endorse, use of military force in the War Powers Act, which presents its own constitutional difficulties.

President Obama has thus, again, ingrained a robust conception of inherent presidential power deeper into our constitutional practice. As with issues of detention, surveillance, signing statements, state secrets, and various counter-terrorism measures, yesterday’s shredding of the Constitution has become today’s bipartisan consensus.

The president’s actions in Libya do rub against constitutional principle. His deference to foreign states’ policymaking and the U.N. reflects a weak conception of sovereignty. His lack of consultation with Congress, especially compared with his hypersensitivity to foreign sentiment, denigrates inter-branch comity. The U.S. national-security interests invoked are ill-defined, attenuated, and inconsistently applied. These points, though, concern the president’s exercise of authority, not its existence.


— Richard Klingler has served as legal counsel for the National Security Council and associate counsel to Pres. George W. Bush.