Politics & Policy

We Do Declare

Libya and the United States Constitution

 

Is what we’re doing in Libya constitutional? How ought a president go about such a thing? We asked some experts.

 

Bill Burck

President Obama’s war in Libya is unconstitutional without congressional authorization. But that is so only because the president has not yet given us a reason to fight that is constitutionally sound. As Andy McCarthy has explained so well, the president’s constitutional power to go to war without congressional authorization is limited to circumstances in which we have been attacked or face an imminent risk of attack, or our vital national interests are otherwise at stake. President Obama has not come close to articulating any such basis for the military intervention in Libya. It appears that his strategy is to hit Qaddafi hard and fast and then get out (meaning the French and the British take over combat operations) before Congress can really take the administration to task for doing an end run around the Constitution.

#ad#This is not to say that President Obama has done the wrong thing, morally speaking, by intervening to prevent the mass slaughter of civilians in Libya. But that does not make it legal. And that’s the administration’s fault.

President Obama could have articulated a clear basis to launch an attack. One can conceive of an argument, for example, that permitting Qaddafi to act without restraint would have sent exactly the wrong message to the rulers of Yemen, Bahrain, and other regimes under pressure that the best way to avoid Hosni Mubarak’s fate is to kill your own people without fear of intervention by the U.S. and the West. That message could have accelerated the collapse of the Middle East into a bloody regional civil war. No one could seriously question the importance to U.S. national-security interests of avoiding such an outcome.

But defining a constitutional basis for intervention would have required the administration to clearly define its objectives upfront. And that is precisely what they appear unable, or unwilling, to do. Saving civilians is, of course, a worthwhile goal, but the U.S. does not intervene anywhere and everywhere civilians are at risk, nor could we.

So what makes Libya special? The president and his advisers have no clear answer. And this helps explain the lack of leadership currently on display in prosecuting the war. It’s impossible to lead our allies effectively when the president does not have any real idea what vital national interests he is trying to defend. Defining those interests, however, would make the president responsible for the success or failure of the mission, a political risk the administration appears keen to avoid.

It is this evasion of accountability that the Constitution prevents. If the president wishes to take the nation into war, he must convince Congress that his reasons are legitimate. If he chooses not to get authorization, then he must explain the severity of the threat to justify his actions. So far, the president has done neither because it appears he does not want to lead, and ultimately be responsible for, this fight. That is no way to run a war.

— Bill Burck is a former federal prosecutor and deputy counsel to Pres. George W. Bush.

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Robert Delahunty 

There are at least three reasons why the U.S. intervention in Libya is constitutional.

First, presidents possess the constitutional authority to deploy the armed forces into hostilities without prior specific authorization from Congress. Congress’s chief power over executive warmaking lies in its control over the nation’s fiscal policy, not in the Declare War Clause. Even in the 18th century, “declared” wars were uncommon, as Alexander Hamilton noted. The Declare War Clause exists primarily to enable Congress to alter international legal relations in the event of conflict, not to determine on war or peace. Past practice of the branches confirms this reading: Witness Kosovo, Haiti, the Dominican Republic, Korea, and many U.S. deployments in Latin America.

#ad#Second, it is arguable that the current U.S. intervention does not rise to the level of “war.” According to President Obama, the intervention will be very limited in duration and scope and the U.S. role in hostilities will be subordinate to that of others.  Third, the War Powers Resolution can be read as authorizing the president to introduce troops into combat situations without prior congressional action for at least a 60-day period.

— Robert Delahunty is an associate professor of law at St. Thomas University.

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Matthew J. Franck

In The President: Office and Powers, a classic work of constitutional law in the mid-20th century, Edward S. Corwin wrote that on the president “rests the duty to ‘take care that the laws be faithfully executed,’ a part of which law is international law. From the first, therefore, it has devolved on him to protect American rights and to discharge American duties under the law of nations; and, as commonly happens, the path of duty became in time a road to power.” Wise words, and cautionary ones.

President Obama’s war in Libya may or may not be a brilliant idea, considered purely on strategic foreign-policy grounds. But those who would rest the president’s legal authority for the operation on a U.N. resolution, on grounds that the president is responsible for “faithfully executing” international law, must answer some questions: What American rights are being protected? And what American duties are being discharged? Unlike President Reagan’s military actions in Grenada and against Libya in the 1980s, there is no pretense here of rescuing endangered Americans or of engaging in reprisals for the deaths of our citizens. So much for American rights. As for American “duties,” there is no treaty obligation or U.N. resolution that can impose any duty on the president that he would otherwise lack authority to undertake in the absence of congressional authorization. And this for the simple reason that our Constitution recognizes no political authority higher than itself, no international “humankind” whose sovereignty supersedes that of the American people.

#ad#The founding generation knew about executive warmaking, and they knew about the difference between declared and undeclared wars. Repulsion of attacks on American soil is the easy case where no one thinks prior congressional authority is required. Defending American lives overseas (and punishing attacks on them), and such plain material interests as the right of free navigation: These too are fairly easy cases. And in the modern age, being prepared to order the line held at the Fulda Gap, or (God forbid) to employ the launch codes in the nuclear “football,” are recognized necessities of the commander-in-chief power. Yet these hard realities have not altogether repealed the constitutional separation of powers. And here is another modern fact: For better or worse, the Congress is in session more than it is adjourned these days. If swift decision-making was required in the case of Libya, why were there so many days of dithering by the president when he could have been seeking some discretionary authority from Congress that he might use whenever he made up his mind? Evidently a debate at the U.N. was more important to him than a debate in the U.S. Congress.

Andy McCarthy is right: This is no business for the courts to meddle in. But here is the sum total of the president’s constitutional case for his action, from his letter to congressional leaders: “I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.” Does anyone seriously credit that as a competent statement of legitimate authority?

— Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Instituteand a regular blogger at NRO’s Bench Memos.

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Kevin Govern

 

U.S. warplanes and guided missiles are currently striking various targets across Libya, as part of the so-called Operation Odyssey Dawn, in our third military intervention in a Muslim nation since 2001. Our military forces are now being committed to a substantial show of force “between war and peace,” ostensibly to further yet another revolution against a dictatorial regime. This is in stark contrast to U.S. support of, or intervention into, “Jasmine Revolution”-inspired uprisings in other North African and Middle Eastern nations earlier this year. Those revolts and uprisings had, at most, U.S. economic and political support, and little to no military support.

 

#ad#What constitutional authority does President Obama have to conduct these military operations? The present “no-fly zone” in Libya, along with limited bombardments of Libyan targets, ostensibly is authorized under U.N. Security Council Resolution 1973: “to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya.” But that is international law. The inherent “Commander in Chief” powers under Article II, Section II, are limited to matters of national defense. In a matter of checks and balances, Congress passed into law the War Powers Resolution (a/k/a War Powers Act or WPA), Section 1547(a) of which states that appropriations laws or general treaties may not be used to infer congressional intent to authorize specific military action. Furthermore, section 1541 (c) limits presidential authority: The president has constitutional authority to introduce troops into hostilities only in cases where Congress has declared war,  Congress has specifically authorized military action, or there is a national emergency created by an attack upon us.

While past presidents have disputed the applicability of the WPA to their Commander-in-Chief orders to deploy forces, President Obama has apparently briefed a select number of members of Congress as a tacit compliance with the WPA’s Section 1543 reporting requirements (within 48 hours of introduction of United States Armed Forces into hostilities, and periodic reports thereafter).

Our present operational (and legal) “path between war and peace” remains to be seen — and challenged — by Congress and the American people. How and when the U.S. will define “decisive victory” or “mission accomplishment” in these or follow-on operations remains unknown.

— Kevin Govern is an assistant professor at Ave Maria Law School. He is a veteran of various deployments during peacetime and war, and served in five Airborne and Special Operations assignments around the globe, amongst other responsibilities, during his 23-year career as an Army judge advocate.

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Richard Klingler

Is the use of U.S. armed force in Libya consistent with the Constitution? As a matter of law, yes — if less clearly as a matter of principle.

Article II of the Constitution grants the president, as Commander in Chief, broad authority to direct the use of force abroad to protect U.S. national-security interests. Whatever the bounds of that authority, the current strikes in Libya fall comfortably within the established understanding of presidential power developed and exercised repeatedly over the past century and more — even in the absence of express congressional authorization. Separation-of-powers principles still apply: Through funding and ongoing accommodations of the Executive, Congress must support any significant use of force.

#ad#Contrast this basis of authority with two others pressed by the president’s defenders. The Security Council’s action is irrelevant, even if the president devoted paragraphs to it in his letter to Congress. The U.N. Charter is not the type of treaty that the Constitution deems “supreme Law of the Land,” and the Security Council has no constitutional status. Separately, Congress sought to restrict, not endorse, use of military force in the War Powers Act, which presents its own constitutional difficulties.

President Obama has thus, again, ingrained a robust conception of inherent presidential power deeper into our constitutional practice. As with issues of detention, surveillance, signing statements, state secrets, and various counter-terrorism measures, yesterday’s shredding of the Constitution has become today’s bipartisan consensus.

The president’s actions in Libya do rub against constitutional principle. His deference to foreign states’ policymaking and the U.N. reflects a weak conception of sovereignty. His lack of consultation with Congress, especially compared with his hypersensitivity to foreign sentiment, denigrates inter-branch comity. The U.S. national-security interests invoked are ill-defined, attenuated, and inconsistently applied. These points, though, concern the president’s exercise of authority, not its existence.

 

— Richard Klingler has served as legal counsel for the National Security Council and associate counsel to Pres. George W. Bush.

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Jeremy Rabkin 

I don’t believe the president’s war powers are defined by clear constitutional boundaries. Most disputes arise in what Justice Robert Jackson called a “zone of twilight.” But our military operations in Libya seem to be in the dark end of that zone. The constitutional issues are certainly troubling and presidents ought to steer clear of constitutional trouble zones when they can.

The president might act without congressional authorization when there has been an attack on U.S. forces or when there is urgent need to rescue Americans in peril. But the administration is not claiming such justifications in Libya. Similarly, one could argue that congressional authorization is not required where U.S. forces are merely acting in a supporting capacity, as in protecting the delivery of humanitarian supplies. But we are way past that in Libya.

#ad#What is most troubling is the suggestion that authorization from the Security Council makes it unnecessary to get separate authorization from Congress. President Truman did make that claim in 1950, but no president has claimed sole authority from the U.N. since then. It’s not a matter of formalities. If the justification is a U.N. mandate, then we seem to be constrained by the terms of the Security Council resolution — which may be why President Obama has several times said that he seeks the ouster of Qaddafi, but that Qaddafi’s removal is not the aim of our military actions. 

A president who seeks authorization from Congress has to explain and defend his policy. That’s a constraint presidents ought to be willing to accept before they place American forces in harm’s way. It’s hard to mobilize support for military operations when their object seems to vary from one day to the next. But without clear authorization, the president may be tempted to adjust his aims to what he thinks can still be supported — from day to day or week to week. That’s political theater, not military strategy. 

— Jeremy Rabkin is a professor of law at George Mason University School of Law.

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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.

#ad#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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Ilya Somin

President Obama’s military intervention in Libya may be — barely — constitutional so far. But if the fighting continues for long or escalates, it will require congressional authorization.

Article I of the Constitution unequivocally gives Congress, not the president, the “power . . . to declare War.” The Founding Fathers sought to avoid a situation where one man had the power to commit the nation to war by himself. Even Alexander Hamilton — the biggest supporter of sweeping presidential power among the framers of the Constitution — recognized that “the Legislature have a right to make war” and that “it is . . . the duty of the Executive to preserve Peace till war is declared.”

#ad#Some small-scale uses of force may not rise to the level of a war and therefore can be undertaken by the president alone under his authority as Commander in Chief of the armed forces. President Reagan’s 1986 airstrike on Libya might be an example, as were Bill Clinton’s 1998 missile strikes against al-Qaeda base camps. If the Libya intervention remains limited to a small number of missile attacks and airstrikes, perhaps it can be justified on the same basis. However, it seems possible that the administration plans to go beyond this.

A congressional vote also might not be needed if the president were responding to an ongoing or imminent attack. However, Qaddafi has not attacked the U.S. in recent years (though he did sponsor numerous anti-American terrorist attacks in the 1980s and early 1990s) and there is no evidence that he had any immediate intention of doing so.

There is some ambiguity about exactly where a small-scale “conflict” ends and “war” begins. But the fact that we cannot draw a precise line between the two does not mean that there aren’t cases that clearly fall on one side or the other. We can’t draw a precise line between people who are “short,” those who are of “average” height, and those who are “tall.” But we can still easily recognize that Shaquille O’Neal is tall. Similarly, a large-scale military action against a foreign government clearly qualifies as “war.”

— Ilya Somin is an associate professor of law at George Mason University, where he teaches constitutional law. He writes regularly for the Volokh Conspiracy law and politics blog.

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Glenn Sulmasy

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.

#ad#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.

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