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We Do Declare
Libya and the United States Constitution


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Ronald D. Rotunda

Our Constitution provides that only Congress can “declare” war. The framers specifically rejected an alternative that would have said that only Congress can “make” war. Since then, America has been involved in many wars but very few declared ones. Our Civil War, the bloodiest in our history, was never “declared.” The U.N. Security Council, not Congress, approved our entry into the Korean War as well as the Libyan no-fly zone, created to prevent massacre of civilians opposing Qaddafi’s dictatorship.

Congress, in an effort to assert more control, enacted the War Powers Resolution over President Nixon’s veto in 1973. It requires the president, when he introduces American forces into hostilities, to report to Congress. Then (subject to a few exceptions), he must terminate the use of force within 60 days unless Congress approves. That provision is a legislative veto. In 1983, the Supreme Court held (in a different case) that all legislative vetoes are unconstitutional.

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Ever since the War Powers Resolution became law, presidents of both parties have argued that it is unconstitutional. When they reported to Congress, they made clear that their reporting was “consistent” with the War Powers Resolution, not “pursuant” to it. President Obama used this same phrase when he reported the Libyan no-fly zone.

That is not to say that the president should ignore Congress. As a matter of policy, the president should involve the legislative branch. That did not happen here, although Obama and Biden, as senators, embraced that principle. Indeed, in 2007, Biden said it would be an impeachable offense if the president involved American forces in Iran without congressional approval.

Now, Obama and Biden only sought U.N. support. That illustrates two points: First, where you stand depends on where you sit; and second, it is easier to run for president than to be president.

— Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University School of Law.



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