Obama’s war may be too little, too late to save the Libyan rebels, but it falls within his constitutional powers. The Constitution does not give Congress the dominant hand in war, the Declare War Clause notwithstanding. Our revolutionary forefathers in 1776 obviously rejected the royal prerogative, and they tried out all kinds of experiments to weaken the executive branch. But when the framers wrote the Constitution eleven years later they restored an independent, unified executive with its own powers in the presidency.
The most important of these powers is to wage war as commander-in-chief and chief executive. Ever since, presidents and Congresses have recognized that the executive can start military hostilities without a declaration of war. The United States has used force abroad more than 100 times. It has declared war only five times. In domestic affairs, Congress makes policy and the president’s job is to faithfully implement the law. But in national-security affairs, the Framers reversed that relationship, so the nation could benefit from the speed and energy of the executive.
A president can and should build political support for war by going to Congress, even if he doesn’t need its constitutional permission — as George W. Bush did in 2001 and 2002 for the invasions of Afghanistan and Iraq. And Congress has the power to cut off funds if it disagrees, a power it can exercise simply by doing nothing.
— John Yoo is a law professor at the University of California, Berkeley. He writes about Libya and the law in this morning’s Wall Street Journal.
I agree with this, but question the wisdom of the President of the United States subordinating his Constitutional powers to the United Nations. Stating that you have no Constitutional responsibility to seek authorization from the People's Representatives, but that unelected UN Technocrats (>50% of whom are from UN-Democratic countries) get to veto your actions, is a non sequitur.
Reply to this commentLinkReport AbuseSo why is no one mentioning that Congress can also trim this supposed constitutional ability to use the US military in non-US threat adventurism?
Seems to me, they passed the War Powers Act, they can trim the situations where it can be invoked. They can required full explanation within say 72 hours. They can hold the President in contempt if he fails to answer or his reasoning doesn't meet the act.
Why is it that now days, there is this belief that once a law is passed it is permanent. What Congress enacts, it can modify, repeal, revoke.
It is interesting how both sides want to keep this power to loan out the US Forces for whatever adventure some international committee wants to pursue.
If this was legal, CHANGE the law.
Reply to this commentLinkReport AbuseMr. Yoo; meet Mr. Healy. External Link
Mr. Healy has a bone to pick with you, sir. Not being a constitutional scholar myself, I would like to read your's, or any other legal scholar's, interpretation of Healy's interpretation.
It appears that we have a classic debate of 'original meaning' vs. 'original intent', and that the principle of originalism is enjoying a certain renaissance, which to with this inquisitive mind, is a healthy practice.
Reply to this commentLinkReport AbusePretty weak arguments, I'd say. Who decides what is and isn't "war" vs "military hostilities" then? The President? Then simply by not deeming any military action war, he has usurps Congressional power. Also, despite your implication, the fact that Congress and the President have acted in a certain way throughout history does not make those actions Constitutional.
Reply to this commentLinkReport Abuse@hokkoda -- yours is a related and important point. This president and liberals in general are very deferential to foreign "supranational" authorities like the UN and world court even while contemptuous of the US Congress, the people or courts (when they disagree with them). Yoo is correct. The arrangement has worked well only because the president and the congress acted in the best interest of the United States. That has started to change since the 60s generation moved into power. Bosnia was a feel-good operation, Somalia too, and this one as well. Those are not in our interest by any stretch. Under these circumstances, a president going rogue and using the military without congressional authorization where we have no national interest, jeopardizes the 222 year the balance between Article I and II. He has the power as Prof. Yoo states, but this is bad-faith abuse of it.
Reply to this commentLinkReport AbuseThis is the Peace Corps with jets and cruise missiles.
Reply to this commentLinkReport AbuseGreat to see an avowed conservative *finally* being consistent about applying the unitary-executive theory; quite a lot of NRO-niks have suddenly discovered Article I of the Constitution after ignoring it for the past 10 years or so.
"Ever since, presidents and Congresses have recognized that the executive can start military hostilities without a declaration of war."
What then is the point of placing the power to declare war in the hands of Congress? Do they simply have the authority to *label* something a war?
Reply to this commentLinkReport AbuseWe may have had only 5 wars in which a formal Declaration was passed (I believe more than 5 actual Declarations were passed, I can think of at least 4 in WWII), but of the 100 military missions the author mentions, in how many of those did the Congress not grant authority, regardless of the actual form it took?
Reply to this commentLinkReport Abuse@Lorraine: that is just pure B.S. Bush went to Congress each and every time. Fortunately for Liberals, voting to send troops into combat doesn't preclude you from stabbing them in the back afterwards. They also didn't like it when Bush stopped playing not to lose in Iraq, and started fighting like a Conservative with the surge in 2007.
The President has a moral responsibility to explain clearly what he is doing. Obama has not done so, and is hiding behind Mommy United Nation's skirt. Bush was no great orator, but nobody ever doubted exactly what he thought.
Reply to this commentLinkReport Abuse@ JKB -- there is a dispute as to whether the War Powers Act was constitutional in the first instance. I don't believe the Supreme Court has been asked to rule on any part of it. It is getting to the point of executive acquiescence, but I do not believe any President has been deemed to have violated it by any Congress. If push comes to shove there might be a constitutional challenge, but my sense is that neither branch wants a court to say one way or the other that this is or isn't constitutional. If unconstitutional, the President's power would be declared unfettered; if constitutional, Congress's power to interfere with the Commander-in-Chief would be unfettered.
Reply to this commentLinkReport AbuseThis war is dangerous and foolish. A tyrant in charge is ALWAYS better than Islamic Radicals.
Reply to this commentLinkReport Abuse@hokkoda: Oh, Bush did, and rightly so (Obama didn't, and wrongly so). The difference is that many conservatives, including conservatives in the Bush administration, claimed that Bush didn't actually need Congressional approval to attack Iraq. See, for instance, here for CNN reporting on the Bush Administration's view, and here for VDH poking fun at the idea that we need Congressional approval for Afghanistan (he doesn't, of course, acknowledge this shift in any of his latest posts).
Reply to this commentLinkReport Abuse“Throughout our history, neither presidents nor Congress have acted under the belief that the Constitution requires a declaration of war before the U.S. can conduct military hostilities abroad.”
This statement from John's WSJ piece is disingenuous in two ways.
First, the fact that a president or a Congress has done something in the past does not make it constitutional. For example, a president and a Congress have acted under the belief that they may regulate “mental activity” under the Commerce Clause to force someone to purchase something from a third party. Does that make it constitutional? Of course not.
More importantly, John leaves something out at the end of this formulation – WHY the military hostilities are being conducted. Are they defensive in nature, or do the hostilities INITIATE a state of war?
In giving Congress the power to declare war, the framers gave Congress the power to INITIATE a state of war, and in giving the president the role of commander-in-chief, it gave the president the power to CONDUCT war. Obviously, there is a difference between the two.
John appears to believe the president has the equal legal power to take the US military and without any approval from Congress (1) invade and conquer a country completely at peace with us that evidenced no hostility toward us and (2) use it to defend us against another country which has attacked and invaded us and is, say, burning our White House. But legally under the Constitution, these are NOT equivalent situations.
Common sense and respect for the constitutional duties of the president militate in favor of giving the president wide latitude in unilaterally using military actions to DEFEND the country. When a man with hostile intent raises a loaded gun and points it at you, you don’t have to wait for him to pull the trigger before responding. But that is nevertheless a DEFENSIVE action on your part.
In Libya, Obama has acted beyond anything that can reasonably be construed as defensive in nature, and his actions are in clear violation of the Constitution.
WHO will stand up and say the emperor has no clothes???
Reply to this commentLinkReport AbuseThank you Mr. Yoo for making the case.
There was a poll on this sight of NRO visitors and I found it somewhat disturbing that a large majority thought the presidents actions are unconstitutional. The action in Libya wise or unwise is legal, and we need to be smarter than this.
I do have some reservations about what we are doing in Libya, I probably would not have done what Obama is doing. I am worried that too many in the conservative movement are being hyper-impulsive in their opinion. You don't like Obama, everything Obama does is bad, it is bad so it has to be unconstitutional. Or something like that. It might be bad, but bad doesn't mean unconstitutional.
I don't think we want to live in a world where the President has to wait for congressional approval to act when swift action is needed, it would seriously cripple our national security.
Reply to this commentLinkReport Abuse"Great to see an avowed conservative *finally* being consistent about applying the unitary-executive theory; quite a lot of NRO-niks have suddenly discovered Article I of the Constitution after ignoring it for the past 10 years or so."
You didn't go back far enough, Lorraine. You should have.
External Link
External Link
External Link
Now, we can discuss ignoring history, yes? By your logic, Thomas Jefferson had run afoul of the Constitution in instituting action during the First Barbary War.
I'm sorry, but your statement, and sentiment, doesn't hold water, Lorraine.
Reply to this commentLinkReport AbuseIf John Yoo says it's legal, it must be!
Reply to this commentLinkReport AbuseSorry, Mr. Yoo is just wrong. Bombing a nation is an act of War, and only Congress can declare War. We know that. Therefore Pres. Obama needed to go to the U.S. Congress to get authorization to take military action against Libya. It's that simple.
The President can go after Pirates but that's about it.
Reply to this commentLinkReport AbuseWith all due respect to the esteemed Mr. Yoo, I believe the Founders' saw the presidential power to wage war as a response to an immediate threat to the country that could not wait for a formal declaration of war. By that standard, Obama's Libyan foray under the auspices of the UN is illegal under the Constitution.
Reply to this commentLinkReport AbuseLegal or not, wasn't it "constitutional law" professor Obama who arbitrated in 2002-2007 on Iraq:
"The president does not have the power under the constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."
(In Iraq Bush had a UN Gulf War Treaty, a senate war resolution & 36 allies.)
"I opposed this war because I said that not only did we not know how much it was going to cost, what our exit strategy might be, how it would affect our relationships around the world, & whether our intelligence WAS GOOD, but also because we haven't caught Bin Laden. We haven't put Al Gaida to rest & as a consequence I thought it was going to be a distration."
"What I am opposed to a dumb war. What I am opposed to is a rash war. What I am opposed to is a cynical attempt.. by the (Bush) administration to shove their ideological agendas DOWN OUR THROATS, irrespective of the costs in lives lost and in hardships borne. What I am opposed to is the attempt by political hacks like Karl Rove to distract us from the rise in the uninsured, the rise in poverty rates, a drop in the median income...I also know that Saddam poses no imminent threat to the U.S., or to his neighbors...I know that even a successful war against Iraq will require a U.S, occupation of undetermined consequences. I know than an invasion of Iraq without a clear rationale will only fan the flame of the Middle East, and encourage the worst, rather than the best impulses in the Arab world, and stregthen the recruitment of Al Guida...You want a fight George Bush? Let's finish the fight with Bin Ladin and Al Qaeda."
In 2007 VP Biden added to Obama's anti-Bush matras by vowing he would impeach a president who went to war without congressional approval.
So let VP Biden commence with the honors.
Reply to this commentLinkReport AbuseAmerican--first, those links aren't on point; the argument that Yoo and others have made is that the President can simply *go* to war, regardless of prior authorization.
Second, your first link about Iraq is to a bill that authorizes "military assistance" that "may not exceed $97,000,000."
Your second link is to the AUMF that covers Afghanistan. I acknowledge that such exist; my point is that I believe they are necessary. Many conservatives don't (or didn't, but now do). Much the same is true about your third link to the AUMF for Iraq.
Reply to this commentLinkReport Abuse