The recent military attacks in Libya have raised concerns from all sides of the spectrum: The Left is not happy that Congress was not consulted, the Right is not happy that action against Qaddafi was not taken sooner, and even Ralph Nader is unhappy, suggesting the military action in the Libyan conflict merits consideration of impeachment of the president.
As any conservative should when ascertaining the constitutionality of governmental acts, we should review how the Founding Fathers would have viewed the subject. It seems clear that the Founders fully anticipated that there would be a legitimate tug and pull between the Congress and the president over actions involving war. But clearly, and without question, the main power over foreign affairs and military operations resided with the executive. The Founders relied in large part upon Montesquieu and Blackstone when drafting the foreign-affairs aspects of the U. S. Constitution, and both of those thinkers felt strongly that this power (particularly for warfare) should properly be vested within the executive. The Founders were also influenced by the example of the powers of the executives in the states — most importantly, New York (probably because Hamilton was a New Yorker). The governors were to be “commanders-in-chief” of their respective state militias. Finally, after the Constitution was written, their understanding of its meaning was influenced by the practice of the first president, George Washington, who made treaties and took other actions often without consulting Congress (even Thomas Jefferson worried about too much information being shared with Congress, for fear of leaks). Thus, I would suggest the Founders did, and would still today, view the Commander in Chief as having the constitutional right to act as appropriate — particularly with regard to 21st-century threats such as al-Qaeda, and the need, as Hamilton opined in the Federalist
, for the executive to be able to react with speed and dispatch to foreign threats or attacks.
The situation in Libya, however, may have been one the Founders would have thought merited consultation with the Congress prior to action. In part, the Founders created the ambiguity about which branch controls military actions to ensure consensus and that all perspectives and opinions were discussed and answers, even if not agreed upon, were provided prior to engaging in potentially controversial military operations. Essentially, as a practical matter, it tightens up strategy and tactics, and ensures that all are aware of the objectives — and the “exit strategy” — before engaging in military operations. Thus, although the Founders would have understood the constitutionality of the Executive’s retaining such authority, they nonetheless — as a matter of policy — may have advised that it would be best to brief Congress fully prior to action.
— Glenn Sulmasy is the author of The National Security Court System: A Natural Evolution of Justice in an Age of Terror.