We Do Declare
Libya and the United States Constitution


Jeremy Rabkin 

I don’t believe the president’s war powers are defined by clear constitutional boundaries. Most disputes arise in what Justice Robert Jackson called a “zone of twilight.” But our military operations in Libya seem to be in the dark end of that zone. The constitutional issues are certainly troubling and presidents ought to steer clear of constitutional trouble zones when they can.

The president might act without congressional authorization when there has been an attack on U.S. forces or when there is urgent need to rescue Americans in peril. But the administration is not claiming such justifications in Libya. Similarly, one could argue that congressional authorization is not required where U.S. forces are merely acting in a supporting capacity, as in protecting the delivery of humanitarian supplies. But we are way past that in Libya.

What is most troubling is the suggestion that authorization from the Security Council makes it unnecessary to get separate authorization from Congress. President Truman did make that claim in 1950, but no president has claimed sole authority from the U.N. since then. It’s not a matter of formalities. If the justification is a U.N. mandate, then we seem to be constrained by the terms of the Security Council resolution — which may be why President Obama has several times said that he seeks the ouster of Qaddafi, but that Qaddafi’s removal is not the aim of our military actions. 

A president who seeks authorization from Congress has to explain and defend his policy. That’s a constraint presidents ought to be willing to accept before they place American forces in harm’s way. It’s hard to mobilize support for military operations when their object seems to vary from one day to the next. But without clear authorization, the president may be tempted to adjust his aims to what he thinks can still be supported — from day to day or week to week. That’s political theater, not military strategy. 

— Jeremy Rabkin is a professor of law at George Mason University School of Law.