Many presidents have been lawyers. Barack Obama is one of the few to have been a constitutional law professor. But he is no less ready to violate the Constitution.
President Obama took the country into war against Libya without a declaration of war. He continues to bombard Libya contrary to the War Powers Resolution. He has compounded one of America’s stupidest wars by making it indisputably illegal.
U.S. participation in Libya’s civil war never made any sense. The conflict posed no security threat. The oil supplies at stake were modest. Most civilian casualties resulted from the fighting, not government massacres. The national “interests” identified by the Justice Department to justify the president’s decision were farcical: “preserving regional stability and supporting the [UN Security Council’s] credibility and effectiveness.”
Moreover, Washington is essentially broke. Busy with one very hot war and the remains of an even hotter one, America cannot afford another war.
Perhaps that is why the president did not go to Congress. It was easier to start bombing and hope legislators would rally around the flag than to make a persuasive case that Washington had reason to bomb Libya—just enough to save civilians, but not quite enough to oust dictator Muammar Qaddafi.
Because of this foolish Goldilocks strategy the war goes on, with desultory U.S. and NATO involvement, two months later. And still there is no end in sight. The greatest military alliance in human history is reduced to claiming as a great victory unconfirmed reports that Qaddafi’s wife and daughter have fled the country.
The latest military misadventure yet again illustrates why the Framers wrote the Constitution as they did. If Congress had said yes, it would share responsibility for the impending debacle. If it had said no, it would have spared the country yet another unnecessary and stupid war.
Today chicken hawks fill Congress, but the early Americans were not fond of war. They particularly didn’t like the British system that allowed the king to plunge the entire empire, including the American colonies, into war for the most frivolous of reasons. So the Founders were determined to make war less likely.
George Mason explained that the president "is not safely to be entrusted with" the power to decide to go to war. He advocated "clogging rather than facilitating war." Thomas Jefferson approved of the constitutional convention’s work, pointing to the "effectual check to the dog of war by transferring the power of letting him loose."
James Wilson insisted that the new Constitution "will not hurry us into war." The new system “is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is in the legislature at large.”
The Constitution is clear. Article 1, Sec. 8 (11) states that "Congress shall have the power...to declare war." James Madison explained that the "fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature." Other essential war powers also were given to Congress: raise the army, set the rules of war, issue letters of marque, ratify treaties, and approve military spending. In contrast, the president’s power was limited to managing the armed forces as commander-in-chief.
Those who favor executive war making are reduced to arguing that to “declare” is just to acknowledge reality. The president can launch an unprovoked invasion of another nation thousands of miles away, while Congress is limited to affirming that yes, indeed, the two countries are at war.
Obviously, the Founders could have made this the law. They knew it well, since it was the British system. But at the constitutional convention only South Carolina’s Pierce Butler pushed to give the president monarchical war powers. Elbridge Gerry of Massachusetts responded that he "never expected to hear in a republic a motion to empower the executive to declare war." During the ratification debates Butler sought to assuage worried South Carolina legislators, noting while some had advocated giving the president this authority, the idea was rejected “as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction.”
One might think that Alexander Hamilton would have wanted to turn the American president into an analog of the British king. Yet, explained Hamilton, the commander-in-chief was merely the “first general and admiral” of the armed services. The president’s military authority was "in substance much inferior to” that of the British monarch. Indeed, added Hamilton, “It would amount to nothing more than the supreme command and direction of the land and naval forces...while that of the British king extends to the declaring of war."
If there is a war to be run, the president runs it. But it is Congress that decides whether there will be a war to be run.
Of course, the president is empowered to deploy the military to defend the nation from attack. For this reason the convention delegates changed Congress' power from "make" to "declare" war. Roger Sherman approvingly noted that the president could "repel" war. That, however, is very different from the president initiating war against other states.
The final refuge of those who want to read congressional war powers out of the Constitution is that small wars don’t count. After all, American presidents have unilaterally used the military in this way throughout history.
But the fact that prior presidents may have acted unconstitutionally does not give a later president the authority to do so. Moreover, the list of earlier actions is a motley mix of limited events, conducted under colorable legal authority, undertaken for vaguely defensive purposes, and/or pursued by commanders without authorization who lied to cover their tracks. Many of these actions may have constituted acts of war, but they weren’t actually going to war.
President Obama once believed that the Constitution limited executive authority. Candidate Obama was asked whether he could bomb Iran. He responded: “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.” Candidate Hillary Clinton was equally direct: “I do not believe that the president can take military action—including any kind of strategic bombing—against Iran without congressional authorization.”
Senator Joseph Biden also took Congress’ war powers seriously. He threatened impeachment if President George W. Bush bombed Iran without congressional authority. Sen. Biden explained that the Founders “were determined to deny the president” the “unfettered power to start wars.” He added that the “Framers intended to grant to Congress the power to initiate all hostilities, even limited wars.”
This has all been forgotten with Libya.
The administration decided that Libya was an itty-bitty, kind of, sort of, quasi, not exactly real war. So a declaration was not required. But on March 21 President Obama notified Congress that he was intervening in Libya pursuant the War Powers Resolution, which limited any military action to 60 days.
As the two-month mark approached, Deputy Secretary of State James Steinberg said that the president was committed “to act consistently with the War Powers Resolution.” But stopping an already unconstitutional war obviously was not an option. Tommy Vietor, spokesman for the National Security Council, explained: “We will not halt our current operations.”
Rather, the administration considered various stratagems to get around the law. The only thing that seemed to matter to the administration was not going to Congress under any circumstance.
One idea was to end strikes by predator drones, leaving support activities. A more creative proposal was to temporarily halt all military action, and then start again. The president then could claim it was a new war, restarting the clock under the War Powers Resolution.
Defense Secretary Robert Gates tried the Harry Truman gambit—just rename the conflict. The three-year Korean War became a “police action.” Secretary Gates called Libya a “limited kinetic action,” whatever that is. When pressed, however, he admitted that if he were “in Qaddafi’s shoes” he would think of it as war.
Presidential press secretary Jay Carney then joined conservative advocates of a monarchical executive when he questioned the validity of the War Powers Resolution: writings about the law “over the years could fill this room, and none of it would be conclusive.”
For a time the administration acted like it hoped the issue would just go away and the congressional leadership seemed inclined to avoid responsibility by doing nothing. But with the deadline looming a half dozen Republican Senators as well as House Armed Services Committee Chairman Buck McKeon (R-Ca.) pressed for an answer: did the administration intend to comply with the law?