Is the Libya war legal? Under the 1973 War Powers Resolution, it is not. President Obama has exceeded the 90-day period to receive retroactive authorization from Congress.
But things are not so simple. No president should accept — and no president from Nixon on has accepted — the constitutionality of the WPR, passed unilaterally by Congress over a presidential veto. On the other hand, every president should have the constitutional decency to get some congressional approval when he takes the country to war.
Advertisement
The model for such constitutional restraint is — yes, Senator Obama — George W. Bush. Not once but twice (Afghanistan and then Iraq) did Bush seek and receive congressional authorization, as his father did for the Gulf War. On Libya, Obama did nothing of the sort. He claimed exemption from the WPR on the grounds that America is not really engaged in “hostilities” in Libya.
To deploy an excuse so transparently ridiculous isn’t just a show of contempt for Congress and for the intelligence of the American people. It manages additionally to undermine the presidency’s own war-making prerogatives by implicitly conceding that if the Libya war really did involve hostilities, the president would indeed be subject to the WPR.
The worst of all possible worlds: Insult Congress, weaken the presidency. A neat trick.
But the question of war-making power is larger than one president’s blundering. We have a core constitutional problem. In balancing war-making power between Congress and the presidency, the Constitution grants Congress the exclusive right to declare war.
Problem is: No one declares war anymore. Since World War II, we’ve been involved in five major wars, and many minor engagements, without ever declaring war.
But it’s not just us. No one does. Declarations of war are a relic of a more aristocratic era, a time when, for example, an American secretary of state closed his department’s code-cracking office because “gentlemen do not read each other’s mail.”
The power to declare war has become, through no fault of anyone, archaic and obsolete. Taken literally, it is as useless as granting Congress the right to regulate horse-and-buggies.
We need, therefore, some new way to fulfill the original constitutional intent. The WPR was a good try, but it failed because it was the work of Congress alone, which tried to shove it down the throat of the executive, which, in turn, for over three decades has resisted it as an encroachment on the inherent powers of the commander-in-chief.
Moreover, the judiciary, which under our system is the ultimate arbiter of constitutionality, has consistently refused to adjudicate this “political question” (to quote one appellate court judge) and thus resolve with finality the separation-of-powers dispute between the other two co-equal branches.
We therefore need a new constitutional understanding, mutually agreed to by both political branches, that translates the war-declaration power into a more modern equivalent:
First, formalize the recent tradition of resolutions (Gulf, Afghanistan, Iraq) authorizing the initiation of war and recognize them as the functional equivalent of a declaration of war.
Second, establish special procedures for operations requiring immediacy and surprise, for example, notification of the House speaker, Senate majority leader, and their opposition counterparts, in secret if necessary.
Third, in such cases, require retroactive authorization by the full Congress within an agreed period — but without any further congressional involvement (contra the War Powers Resolution). The Constitution’s original grant of power to Congress was for a one-time authorization, with no further congressional constraint on executive war-making except, of course, through the power of the purse.
The Libya adventure is too much of a mess to expect mutual agreement on this kind of constitutional compromise now. Nor is Obama, having bollixed the war-powers issue in every possible way, the man to negotiate this deal.
Resolution of this issue will require time, dispassion, and therefore inevitably a commission — say, chaired by a former president of each party, Bill Clinton and George W. Bush, and consisting of former legislators, judges, and generals, with perhaps a couple of historians and not more than one international lawyer thrown in.
Then submit the commission’s proposed new law for approval by Congress and the president. And have David McCullough read the final text aloud at the signing ceremony. That will make it official.
We need a set of rules governing the legality of any future war. This will allow us to concentrate on the most important question: its wisdom.
Charles, I think this is yet another example of the differences between Barack Obama and George W. Bush. Bush respected the Office of the President and viewed the Constitution as the framework of our laws. Barack Obama does not respect the office he currently holds and views the Constitution as nothing more than a outdated historical document.
Thomas Jefferson never declared war against the Barbary pirates in 1801. “Jefferson sent a small force to the area to protect American ships and citizens against potential aggression, but insisted that he was 'unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.'” He told Congress: “I communicate [to you] all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight.” Although Congress never voted on a formal declaration of war, they did authorize the President to instruct the commanders of armed American vessels to seize all vessels and goods of the Pasha of Tripoli "and also to cause to be done all such other acts of precaution or hostility as the state of war will justify."
When I use a word, said Humpty Dumpty in a rather scornful tone, it means precisely what I choose it to mean neither more nor less. Not calling it "war" doesn't make it "not war." This Humpty Dumpty syndrome is way out of hand.
"The power to declare war has become, through no fault of anyone, archaic and obsolete. Taken literally, it is as useless as granting Congress the right to regulate horse-and-buggies."
Any other provisions of the Constitution with respect to which this statement is arguably relevant? What does Krauthammer mean by "fault"?
Rather than just a new political understanding, how about a Constitutional Amendment? I appreciate that it's not all that easy to get one of those, but I'm not sure that the problem can be solved with merely a new political understanding. As you point out, the problem is that the Constitution has become outmoded, unsuited to modern modes of warmaking, in what is perhaps, the only area where the Federal Courts are still reluctant to trample on the political branches, and the politics of warmaking are such that Congress can't really exercise the one power it indisputably has to limit Executive power. A campaign to amend the Constitution could have many advantages. For instance, it could provoke the kind of debate about Constitutional first principles that we've seen with Obamacare; the kinds of debates that Conservatives are primed to win. I'm enough of an optimist (I'm a Massachusetts Republican) that I think we could see some very interesting dicussions about the proper scope of the powers of the federal government. Maybe there's a later-day Madison or Hamilton, waiting to write New Federalist Papers.
Rather than just a new political understanding, how about a Constitutional Amendment? I appreciate that it's not all that easy to get one of those, but I'm not sure that the problem can be solved with merely a new political understanding. As you point out, the problem is that the Constitution has become outmoded, unsuited to modern modes of warmaking, in what is perhaps, the only area where the Federal Courts are still reluctant to trample on the political branches, and the politics of warmaking are such that Congress can't really exercise the one power it indisputably has to limit Executive power. A campaign to amend the Constitution could have many advantages. For instance, it could provoke the kind of debate about Constitutional first principles that we've seen with Obamacare; the kinds of debates that Conservatives are primed to win. I'm enough of an optimist (I'm a Massachusetts Republican) that I think we could see some very interesting dicussions about the proper scope of the powers of the federal government. Maybe there's a later-day Madison or Hamilton, waiting to write New Federalist Papers.
I don't disagree, but the answer is an unelected blue ribbon commission? What do we elect these people for if every time there is a difficult decision to make they have to appoint someone else to male it?
How rarely I disagree with Dr. Krauthammer, but this column is shot full of constitutional and logical holes. Any statutory rules will have the same problems as the War Powers Act. That the president didn't sign the law is irrelevant..Congress "passed unilaterally" just as the founders envisioned. --- The current system is working. President Obama is paying the political price for failing to follow the gentleman's agreement precedent of the presidents Bush. Congress still has the political power it needs, just as the appellate judge quoted insinuates. Funding can be withdrawn and in extreme cases the president could be impeached. The last thing this country needs is another "commission."
Whose "fault" is it that the Founders had no conception of what 21st Century "commerce" would be like? If they knew that "commerce" would be what it is, would they have structured the Commerce Clause to be susceptible to as narrow a reading as modern conservatives urge? Is Krauthammer wrong to suggest a legislative solution to an issue with constitutuional implications?
I don't think this has been Krauthammer's finest hour of punditry.
--
STRIKE ONE:
"The power to declare war has become, through no fault of anyone, archaic and obsolete."
Note the passive voice, that the power "has become" obsolete. No one's to blame, and Krauthammer won't even offer a provisional theory as to a philosophical cause -- such as the progressives' utopianism that believed the end of history is/was within our grasp, and with it the end of poverty, crime, and even war.
The idea of a "war to end all wars" suggests that very utopianism, and Voegelin long ago found (and Buckley popularized) an accurate diagnosis of the problem: an intent to "immanentize the eschaton."
Krauthammer shouldn't downplay the importance of ideas and act as if this change in what's politically possible just, like, happened.
STRIKE TWO:
Krauthammer refers to the judiciary, "which under our system is the ultimate arbiter of constitutionality."
He doesn't say "under the Constitution," because the document never grants such primacy to the courts. Andrew McCarthy has argued here that MORE issues should be handled politically, not judically, and I believe the Founders' vision was of three CO-EQUAL branches tugging and pulling through the Constitution's checks and balances.
No consitutional originalist should note that the judiciary is supreme (which is at least the current political consensus) WITHOUT noting that it should be otherwise.
STRIKE THREE:
Krauthammer thinks we need YET ANOTHER commission.
--
Here we have an unwillingness to tackle the consequences of utopianism, coupled with an unseemly deference to both the courts AND unelected commissions.
When he's good, Krauthammer can be very good, but he can miss the mark BADLY. He does so here, and I think he's been doing so a little too frequently.
A declaration of war is obsolete because it has no impact on the actual war making ability of the country.
Absent a declaration of war, all forces can still be deployed by the President as prescribed by Title 10 of the USC, armaments procured by the Congress, munitions expended, terrain seized and enemies fixed and destroyed by the armed forces, etc.
Gaining a declaration of war does not authorize the Armed Forces to do anything they can't get authorization from elsewhere in the chaino f command.
I don't know whether this is a good development, since without declared wars it seems harder to end wars with clear victors and losers. But if you want to argue that force projection outside of formally declared wars are unconstitutional, you have a lot of precedent you will need to unwind first.
What comments. I like NRO in that I can read great articles and also (usually) informed comments from intelligent people. Maybe too intelligent? Look at all the comments here. There is already way too much in the way of argument concerning history and hegemony, syntax and semantics, legality and legislation, and on and on. This is like listening to politicians. We argue ourselves into a state of non-action paralysis or semi-active compromise while the nation deteriorates abroad and at home. Mr. Krauthammer is correct. The old concept of formal war is a dead as week-old road kill and the schemes of our current Commander-in-Chief to take advantage of this state of affairs smells the same. Nature abhors a vacuum. Where power and authority fall short, power seekers move in to fill the void. The WPR is not a well-written piece of legislation in any case; the constitution is clear but falls short of describing authority in the case of “low intensity” conflict. The founding fathers did not envision an organization such as the U.N. Several of my friends from my active duty military days have also discussed the obsolescence of the Geneva Conventions in handling captured combatants in recent conflicts. The two; formal war and the Geneva Conventions overlap in their obsolescence. We then end up without being able to define what sort of armed conflict we are in or what the legal standing (status?) of the enemy combatants is. Did we not hear idiotic suggestions such as Miranda Rights for captured combatants? We seriously and desperately need some new definitions to fit armed conflict during this millennium.
I'll start by saying that, Mr. Krauthammer, should someone be able to convince you to run, I would strongly support a Krauthammer bid for the presidency.
That said, I could not disagree more with your perspective on this issue. Archaic or not, congressional declarations of war are a part of the fabric of the constitutional foundation of this country. The movement away from formal war declarations is a carry-over from the cold war (where major powers rightly feared the escalation of conflicts and necessary activation of alliances a war declaration would have required), perpetuated today only by the lack of political will.
Bush could, and arguably should, have had a war declaration on Sept 12, 2001 against virtually whomever he deemed necessary. Further, a war declaration greatly frees the president and the pentagon to wage war on their terms without constant congressional oversight (except where appropriations are concerned).
War by committee, regardless of the party leading it, is an unnecessarily costly and often ineffective pursuit.
Krauthammer is incorrect is saying there has been no declaration of war since WWII. When Congress authorizes the use of military force like it did, twice, with Iraq that is the same as a declaration of war. There is no formal form to declaring war. It just requires Congress to say military force is authorized.
I think a statute enacted by Congress and signed by the President has the same constitutional problems that the 1973 War Powers Resolution has. Future presidents can say that this law does not bind them just as Presidents Nixon through Obama have refused to be bound the 1973 statute. The only way to bind future presidents is to enact an Amendment to the U.S. Constitution.
As a practical matter, I think presidents are better served by getting formal declarations of war before initiating hostilities. A declaration of war approved by Congress means that there is a consensus behind going to war, and it binds the representatives who voted for war to the prosecution of the war. I think GWB made a mistake by allowing the Congressional resolutions that authorized attacking Afghanistan and Iraq to be described as "authorization for the use of force" instead of calling them "declarations of war." Every citizen understands the nature of a declaration of war and can make his opinion of the war known at the next election. This is something that our elected representatives cannot hide from. Also, having a declaration of war in hand enables a president to prosecute the war with the knowledge that the nation is behind him as the war progresses. Consequently, I think declarations of war are not obsolete and should be used much more often.
"The only way to bind future presidents is to enact an Amendment to the U.S. Constitution."
What makes you think that will bind them? The 10th Amendment has not done much to bind anyone in Washington, and the First Amendment now serves approximately the opposite function of the one it was written to serve.
In the end, words on a page do not bind anyone. The only ultimate constraint on any government actor is today the same as it was in Caesar's day: political support (or, more precisely, the lack thereof). The Constitution doesn't give the Supreme Court ultimate authority over constitutional interpretation, but they have it, because people obey their commands.
This is the best defense for Krauthammer's call for a new constitutional "understanding." This country could be a lot better off than it is if we suddenly all agreed to start taking the words of the Constitution more seriously. That wouldn't be a constitutional "amendment," it would be a new constitutional "understanding."
Follow
