On the Corner, NR editor Rich Lowry notes that Harvard’s Jack Goldsmith, formerly chief of the Bush Justice Department’s Office of Legal Counsel (and author of the invaluable book The Terror Presidency: Law and Judgment Inside the Bush Administration), has offered characteristically valuable insights on the question of whether President Obama acted constitutionally in starting a war with Libya. In an NRO column last weekend, I contended that the president acted unconstitutionally.
As is often the case, legal commentary goes both ways on the question of when a president may unilaterally — i.e., without congressional approval — enmesh the country in armed conflict. Still, with due respect to Professor Goldsmith and other legal experts, I think there is an invalid assumption in their analyses of the Constitution’s assignment of war powers: namely, that the resulting issues are justiciable. They aren’t, nor were they intended to be.
That’s why I argue that, although President Obama’s unilateral commencement of a war against Libya is constitutionally wrong, he clearly has the power to do what he has done, for there are no legal remedies. This is a political dispute, not a legal one. Congress, if it is so disposed, will have to flex its competing constitutional muscles to rein the executive branch in. The courts should not, and almost certainly will not, intervene.
I don’t believe the Framers ever arrived at a consensus when it came to the war powers. The statements in the debates over the Constitution are all over the map. Some wanted congressional approval to be the necessary trigger for taking the nation to war. That’s why early drafts of the Constitution called for vesting Congress with the power to make war. Others realized this would be suicidal, leaving the country vulnerable to an annihilating attack while the president waited for Congress to act. That’s why the power to make war was ultimately watered down to the power to declare war.
In his excellent book The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11, University of California law professor John Yoo, another alumnus of the Bush Office of Legal Counsel, argues that the power to declare war is basically just the authority to fix the rights and privileges of belligerents and combatants under the laws of war (e.g., legitimating attacks on persons and property, permitting seizures of contraband supplied by neutrals, etc.). This enumerated congressional power would not, on this interpretation, be much of a limitation on presidential war-making — especially when the goals of a military operation are limited and fall short of “total war.”
I usually defer to Professor Yoo on matters of executive authority, but I’m not with him on this one. The Framers wanted both Congress and the president in the mix when it came to involving the country in armed hostilities. Settling on a congressional power to declare war was a compromise between those who wanted legislative dominance and those who wanted a freer presidential hand. The compromise did not resolve the tension, but it is indicative of an intention to give the people’s representatives a substantial role.
Putting aside the power to declare war, this intention is elucidated by the pains the Framers took to put Congress in charge of whether and when to raise an army, and to limit any appropriations for an army to two years. Obviously, the Framers did not presume the need for a permanent army. That certainly cuts against the idea of freelance executive warmaking. Moreover, the Framers left it to Congress to provide for a navy and to call forth the militia in the event of invasion or insurrection. Manifestly, these are substantial war powers — not meant to overwhelm those of the commander-in-chief, but clearly meant to be relevant.
This is consistent with a design of government for a free, self-determining people whose president was to be a chief of state but not a ruler. Barring an emergency that requires bringing force to bear in our defense, We the People should not be taken to war unless we the people — through our representatives — agree that we must go to war. No doubt that is why Sen. Barack Obama, as a presidential candidate and former Harvard Law Review editor flaunting his claimed expertise in constitutional law, proclaimed that “the president does not have 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.”
Prudently, the Framers did not settle on a procedure for starting wars, because the circumstances leading to war and the stakes of war are, respectively, unpredictable and incalculable. It would be perilous to hamstring the country with ironclad rules. Instead, the Framers gave both branches relevant powers that work best when they are employed harmoniously — i.e., when the country is united in going to war — and that enabled Congress to check executive excess. And what greater executive excess could there be than a president’s unilaterally taking the country to war under circumstances in which there has been no attack and there is no imminent prospect of attack against the United States, and the vital interests of the United States are not at stake?
Let’s pretend that there were no standing army, as the Framers assumed there mightn’t be. Would Congress tax Americans to raise an army to fight a war in which no vital American interests were at stake? Of course not — and the fact that we happen to have an army is no reason to do something we wouldn’t raise an army to do.
You don’t need to be able to articulate every close case in which unilateral presidential warmaking might be constitutionally justifiable in order to know that the Constitution frowns on the president’s unilateral use of military force in the absence of a material threat to the United States. If we are going to go to war despite the lack of obvious national-security reasons for using military force, Congress should authorize it to ensure that the most consequential decision a body politic can make is actually made by the body politic. That’s why I contend, as NR’s Ramesh Ponnuru notes, that President Obama’s commencement of war against Libya is unconstitutional.
Agree or disagree with my reasoning, how can it be, given the Constitution’s manifest vesting in Congress of powers over the decision to go to war and the compulsion of means for fighting war, that a president can think he needs approval from the U.N. or the Arab League but not from the representatives of the American people?
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.