By using the US Military to begin hostilities with a foreign nation without a Congressional declaration of war, Barack Obama has committed a serious violation of the Constitution. While he certainly is not the first to do so in regards to war powers, it's high time that he becomes the last.
With military action taking place in Libya right now, the essential question must be asked: Is it even Constitutional? For those of you who don't want to read more than a sentence or two, here's the short answer. Absolutely not.
DELEGATED POWERS
The ninth and tenth amendments, while they didn't add anything new, defined the Constitution. In short, they tell us that the federal government is only authorized to exercise those powers delegated to it in the Constitution . . . and nothing more. Everything else is either prohibited or retained by the states or people themselves.
What does this have to do with Libya? Well, whenever the federal government does anything, the first question should always be, "where in the Constitution is the authority to do this?" What follows here is an answer regarding American bombs being dropped on Libya.
WHO DECIDES?
Ever since the Korean War, Article II, Section 2 of the Constitution has been regularly cited as justification for the President to act with a seemingly free reign in the realm of foreign policy – including the initiation of foreign wars. But, it is Article I, Section 8 of the Constitution that lists the power to declare war, and this power is placed solely in the hands of Congress.
Article II, Section 2, on the other hand, refers to the President as the "commander-in-chief of the army and navy of the United States." What the founders meant by this clause was that once war was declared, it would then be the responsibility of the President, as the commander-in-chief, to direct the war.
Alexander Hamilton clarified this when he said that the President, while lacking the power to declare war, would have "the direction of war when authorized."
Thomas Jefferson reaffirmed this quite eloquently when, in 1801, he said that, as President, he was "unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense."
In Federalist #69, Alexander Hamilton explained that the President's authority:
would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the constitution under consideration would appertain to the legislature.
James Madison warned us that the power of declaring war must be kept away from the executive branch when he wrote to Thomas Jefferson:
The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature.
WORDS HAVE MEANING
If, like any legal document, the words of the Constitution mean today just what they meant the moment it was signed, we must first look for the 18th Century meaning of the words used. Here's a few common 18th-century definitions of the important words:
– War: The exercise of violence against withstanders under a foreign command.
– Declare: Expressing something before it is promised, decreed, or acted upon.
– Invade: To attack a country; to make a hostile entrance.
What does this all mean? Unless the country is being invaded, if congress does not declare war against another country, the president is constitutionally barred from waging it, no matter how much he desires to do so. Pre-emptive strikes and undeclared offensive military expeditions are not powers delegated to the federal government in the Constitution, and are, therefore, unlawful.
HOW IT APPLIES TODAY
Here's the quick overview of how this all plays out:
- In Constitutional terms, the United States is currently at war with Libya.
- Libya is not invading the United States, nor has it threatened to do so.
- Congress has not declared war. Barack Obama did.
Some would claim, and news articles are already reporting on it, that the 1973 war powers resolution authorizes the President to start a war as long as it's reported to Congress within 48 hours. Then, Congress would have 60 days to authorize the action, or extend it.
The only question you should have to ask for this would be – "where in the Constitution is congress given the authority to change the constitution by resolution?"
It doesn't. And that resolution, in and of itself, is a Constitutional violation. More on that in a future article, of course.
James Madison had something to say about such a plan when he wrote:
The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war. [emphasis added]
War Powers resolution or no war powers resolution – without a Congressional declaration, the president is not authorized to start an offensive military campaign. Period.
The bottom line? By using the US Military to begin hostilities with a foreign nation without a Congressional declaration of war, Barack Obama has committed a serious violation of the Constitution. While he certainly is not the first to do so in regards to war powers, it's high time that he becomes the last.
As concerned as I am over the President’s abrogation of the US Constitution; he’s ignored this document on so many other occasions that it’s becoming more difficult to muster any real surprise and/or shock over such an action on his part.
What really concerns me is the President’s subsequent statements that; “We anticipate this transition to happen in a matter of days not weeks.” Does this mean that we’ll be giving authority to utilize American military assets to some cheese-eating-surrender-monkey of a French Military Marshall? Is POTUS going to place the equipment and manpower of a carrier air group stationed in the Mediterranean at the disposal of a foreign field commander?
It’s one thing to say that he feels as if he doesn’t need to consult Congress because they, in his mind, have been trumped by the ‘higher’ authority of a world body. But to place the American military under the command of a foreign military officer is absolutely astonishing!
As concerned as I am over the President’s abrogation of the US Constitution; he’s ignored this document on so many other occasions that it’s becoming more difficult to muster any real surprise and/or shock over such an action on his part.
What really concerns me is the President’s subsequent statements that; “We anticipate this transition to happen in a matter of days not weeks.” Does this mean that we’ll be giving authority to utilize American military assets to some cheese-eating-surrender-monkey of a French Military Marshall? Is POTUS going to place the equipment and manpower of a carrier air group stationed in the Mediterranean at the disposal of a foreign field commander?
It’s one thing to say that he feels as if he doesn’t need to consult Congress because they, in his mind, have been trumped by the ‘higher’ authority of a world body. But to place the American military under the command of a foreign military officer is absolutely astonishing!
Oops, double post. I’m just not having a good day; am I?
The last ‘declared’ war the US fought was World War II. The undeniable fact is that presidents get to make war. Period. Obama has simply joined the fraternity of US presidents who have ignored the Constitutional process for declaring war. Whether you want to call it ‘war’ or ‘Bingo,’ Democrats and Republicans, liberals and conservatives, have waged war from the Oval Office.
As for the War Powers Act of 1973, many constitutional experts have long argued that it is an unconstitutional restriction of the president’s role as commander-in-chief of the armed forces, and thus violates the principle of the separation of powers.
And Bill, have you forgotten that the French have been leading the charge on this particular…what can we call it?…let me suggest ‘live fire exercise with live targets?’ Sarkozy seems to want France to assume a leadership role in the EU, and, like so many heads of governments, he knows that waging a (relatively) minor war is a good way to show he’s got the stones for the job. Note that French public opinion polls now show a majority of the population supporting French involvement, a lightning turn-around for just a few days ago.
Jeeze. I take a year off to start a new business, and the first comment I make is to agree with Gestell. What has this world come to?
The Constitution is deliberately ambiguous about the right of the Commander in Chief to engage in military conflict. Virtually all US presidents have exercised this authority without asking for an official declaration of war. Congress was given that authority to formally express the intent of the nation in response to really big events where the country as a whole needs to be mobilized toward a common end. It’s a way to get the people’s representatives to officially back the actions that a President will take to advance or protect the national interest where the entire country needs to be actively engaged.
When it comes to fighting the Barbary Pirates, or Pancho Villa, or jihadi terrorists, the President simply acts in his capacity as Commander in Chief. The facts on the ground (i.e. when the military action begins to consume an inordinate amount of national resources — which is a real, not rhetorical issue), combined with good old fashioned partisan politics, helps define when a formal declaration of war becomes necessary; that is, if the other obvious facts on the ground (like, say, another Pearl Harbor attack by a foreign nation) don’t obviate this entire discussion. Which is a long winded way of saying that the issue isn’t cut and dry, particularly in an age when a formal declaration of war carries with it the logical need to commit the nation to an unqualified victory utilizing all of its resources. Do we really want to use nuclear weapons? If we don’t, why exactly did we “declare war” if we’re not prepared to fight a real war?
The problem with Obama’s Libyan Adventure is that it’s fundamentally stupid, not unconstitutional. We shouldn’t use the US military to stop murders in foreign countries unless we’re prepared to stop the murderers too. I’ve heard the analogy that we have a moral obligation not to turn our back on a person about to be killed when we have the power to stop that murder. Okay, then stop the murder — and remove the murderer too. If not, we simply save one arbitrary life, and then allow the murderer to keep on killing once we go away. Where’s the “morality” in this?
There’s ample justification to remove Ka-daffy for his past terrorist acts against the US. This justification would negate the logical need to then intervene in every other country where these governments are also killing their citizens. But apart from some rhetorical asides where Obama says that Ka-daffy’s departure is desired, he’s made it clear that the official justification for our actions is to simply stop Ka-daffy’s airplanes from killing his people, not regime change. (Ground troops are exempted from our intervention unless they’re easy targets from 15,000 feet, then it’s okay to kill them too; otherwise these murders are outside our self-defined jurisdiction.)
This isn’t a policy. It’s a pseudo-academic exercise.
Debating the presumed Constitutionality of the Commander in Chief committing troops in the absence of a formal declaration of war misses the point, as does believing that the War Powers Act is anything other than a convenient shill that Congress presumes (incorrectly) has any real authority over the President, and where every President since Nixon has never formally recognized its authority, but complies with its provisions anyway for good public relations.
Instead, we ought to be debating the wisdom of pursuing a half-assed policy that even the Secretary of Defense says we’re making up as we go along, where the consequences for our national security are dubious at best. Are we going to allow Ka-daffy to remain in power? What happens if he stays in power? Who exactly are we helping to take over for him if he’s forced out or killed? And why again are we doing this in the first place?
You know, little things like this.
Phillip – so you disagree with James Madison? Jefferson too?
So do Nancy Pelosi and Harry Reid.
I prefer what the founders had to say.
Phil, it’s good to see you back!
In this situation, perhaps it would be wise to defer to the words of our “Constitutional law professor” president from 2007 when he said:
“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”
Patrick:
Believing anything a politician says is the height of insanity. Believing anything Obama says is reason for commitment!
Like most politicians he’ll say whatever he needs to say to get elected. Like most Democrats, for him history begins that morning, so what he said before has no operational relevance to what he purports to believe today.
In fact, I’m not sure that Obama really “believes” anything — at least, nothing he can state publicly. His governing philosophy consists of hackneyed liberal slogans about power and economics, none of which have any relationship to the real world, but all of which make for great academic wine and cheese party discussions.
Michael:
It’s not a matter of disagreeing with a quote about “defense”, or “war”. It’s a matter of understanding that the Constitution deliberately set up a system where the President, as Commander in Chief, has the authority to take military action independent of Congress.
Not every military action is a “war”. “Defense” can (and has been) justified as a proactive act. This is what politics (in the broad sense) is all about, and politics is the real-world terrain through which these issues are vetted.
There’s a pragmatic reason why the representative body of the United States would formally commit the nation to a “war” that would, by necessity as in WWII, require a total national commitment of resources. There’s a similar pragmatic reason why the Constitution doesn’t require the president to seek a formal declaration of war to go after the Barbary Pirates, or cross into Mexico to hunt down Poncho Villa.
By the way, wasn’t it Jefferson who attacked the Barbary pirates without a formal declaration of war? Were the people the US killed any less dead by this action? What exactly made the attack by US naval vessels on a foreign entity “not war”? [This is an example of looking not just at what the founbders "say", but what they actually "do"]
Rather than start with the assumption that war is only possible when it’s officially declared by Congress, let’s look at the actions the US Constitution permits. The fact is the President has always had the Constitutional power to engage in foreign military conflict without a formal declaration of war. It only stands to reason, then, to ask the question why is a formal declaration desired (or required) when we kill some people, but not others?
You’ll find the answer to that in my original comment.
Let us keep it simple for all you liberals out there. Agreed, this is not the first time another President has violated the Constitution with regards to the declaration of war however, I was always taught two wrongs do not make a right. In an earlier post I stated any Judge that does not understand the Constitution should be fired. I revise that statement to anyone in a government position or in the military is required to understand the Constitution. It is sooo simple a fifth grader could understand it. OOPs, there goes 90% of all government employees!
Phillip –
There are so many errors in your statements that it would take an article to rebuke them.
I will keep it simple – you referred to Thomas Jefferson and the pirates as justification.
Jefferson himself disagreed with you. In fact, there’s a quote in the article from our friend TJ – and that was in regards to the Barbary conflict.
Defense only. Repelling attacks only. Not libya.
But then again, people like you and Pelosi have loved to distort our constitution for a long, long time….
I’m always amused by people who have so much evidence and reasoning to refute a position they can’t find the time to respond. That kind of speaks for itself.
The fact is that Jefferson did not ask congress to formally declare war. Rather, he used his executive powers to engage in military conflict. This isn’t even arguable.
The idea that this was okay because it’s “defensive” neglects the fact that “defensive” is a subjective evaluation. Ka-daffy is equally responsible for attacks on American life and property. So, in the Jeffersonian fashion, we’re attacking Libya as a defensive measure without the need to declare war via an act of congress.
This doesn’t even get into the illogic of defining war as an “invasion”. We’re flying over Libya dropping bombs. There is no US army on it’s territory. So in the view where “war” equals “invasion”, the best we can be accused of is malicious littering.
All of this points out the silliness of playing with words instead of actually attempting to understand and analyze an issue.
Hyper partisanship — whether on the Right or Left — is not analysis. It’s venting an opinion. And like the exit point of the human digestive system, everyone has one. No personal preference or opinion is any better or worse than any other personal preference or opinion, which is why websites like this prefer actual analysis to opinions.
But I will tell Nancy you said hello the next time I see her.
No, I don’t have time, but many of your comments are standard claptrap, and I’ll likely be using them in a future column.
Ah yes, once again, the moral equivalent of “I have so much to say I can’t actually say it now, but I will one day when you’re not looking so you can’t respond”.
If you’re not equipped to participate in an actual discussion over something you yourself wrote, don’t insult our collective intelligence by saying that I’m clearly wrong, but you don’t really have the time to actually defend your position. Just write your article and let others discuss it without your silly side-bar comments.
You can look in the archives and see that I don’t shrink from the challenge when I write an article with some BS dodge about ‘I can prove your wrong but I’m too busy to do so’. In fact, one of the reasons I haven’t written in several months is that I don’t have a lot of time at the moment to offer an analysis and defend it against cogent, an at times moronic challenges.
But having put my position out in response to yours, I’ll make the time to respond to any serious challenges to my analysis of your reasoning. It’s the only intellectually honest thing to do once a person enters the discussion. That is the point of this website, to actually discuss and debate ideas, not run away when your assumptions are challenged?
PS: Nancy still says hello.
I’m delighted to find Mr. Jackson agreeing with me. The President has the constitutional authority to use the US military; this has been understood by both SCOTUS and Congress for a very long time. Would Mr.Boldin have denied Jefferson the use of force against the Barbary pirates?
Just two quick comments on the president and the Constitution:
(1) No matter what conservative originalists may say, the Constitution does not give us a definition of the “executive power” the office possesses (Art.II.1). The contents of II.2-3 are examples of this power, but an originalist would have to strain very hard to show that the concept of “executive power” is actually defined. (2)No one doubts that the President cannot “declare” war; that power belongs to Congress–but not every use of military force is “war.” The example of Jefferson should make this clear.
Gestell – you know I quoted Jefferson on the Barbary conflict in the article, right? You can read more on him if you look it up yourself – his SOTU from 1801 pretty much covers it.
Actually Gestell, if you’ve read what I’ve written on the US Constitution over the last 5 years, technically it’s you agreeing with me :)
Even though I haven’t been participating in these discussions for several months now, I do drop in on them from time to time. Despite your constant attempts to define present day conservatism in archaic political terms (another example of looking at words instead of the meaning of those words in present day political context), I do recognize that you are the rare liberal who actually understands the threat posed by Islamic fundamentalism. And you seem to have a decent-enough grasp of the practical nature of American politics to avoid the hypocrisy and pitfalls of the typical liberal commentators who wander in and out of this website from time to time, and simply vomit their opinions disguised as analysis.
The fact is, as the paleocons will more than testify, I dislike simple-minded analysis regardless of whether it originates from the Right or Left. We face a critical time in this world where real issues are at stake. Inventing Constitutional conundrums where no such definitive problems actually exist (again strongly held opinions are not substitutes for actual, thoughtful analysis) is silly and dangerous, because it takes our collective eye off the real problems we face.
As you and I, and presumably a lot of others recognize, the Constitutional issue of “declaring war” is not cut and dried. Better to work this issue through the real world instead of setting up supposedly definitive, but in reality straw man arguments, which leave us arguing about the wrong thing.
Obama’s “policy” (if one can even call it that) is silly, inconsistent, and dangerous, and we ought to be addressing the real world implications of that instead of defining “war” as “invasion” and then constructing a smoke and mirrors universe to make a pseudo-academic point.
I’ve accused liberals in the past of selective memory as they simultaneously support and oppose the same policy depending upon which party is in power. Conservatives suffer from the opposite problem. The zealots among us create their own logic system to make categorical pronouncements that bear little resemblance to the real world.
Exposing the fools on both sides will make the world a better place. While the numbers on the Right will surely dwindle if this is actually done, the problem for your side is that there won’t be enough people left to man a two-person bobsled. For every nut we have, you guys have got the tree …
Phil,
Of course I don’t believe Obama was being sincere in 2007, as this episode aptly demonstrates. Not only has he done exactly the opposite of his words, but unlike his predecessor, he hasn’t even gone through the political pretense of getting approval from congress. Lest we forget that Bush got congressional “authorization to use military force” for both Iraq and Afghanistan – a detail that the constitutional law professor in chief neglected to mention when he was grandstanding in ’07. The irony is palpable. Speaking of which, what ever happened to Code Pink, Cindy Sheehan, ANSWER, and the rest of the anti-war left? I suppose the whole discussion comes down to what the definition of “war” is, and the definition seems to be heavily dependent on which political party holds executive power.
But leaving aside the constitutional issue, there doesn’t seem to be any practical advantage in getting involved with a civil war in Libya either. The administration has been parroting the line that we have a “moral obligation to protect innocent civilians being harmed by their own government”, but using that standard the entire basis for the left’s opposition to Iraq evaporates and our inaction in dozens of other autocratic countries, particularly in the very recent example of Iran and its Green Movement, makes us into instant hypocrites. Even a consistently stupid foreign policy is preferable to the schizophrenic (and still stupid) foreign policy we’ve gotten out of the Obama administration.
Patrick: Mine was a generic observation, not a reference to your thought process. Just wanted to make that clear.
One of the most serious limitations of many conservatives is their belief that the Constitution and its interpretation are very simple things. There was already plenty of disagreement about one or another of its provisions in the 1790s, and this history continues. Originalism, like any other sort of constitutional interpretation, is a set of opinions about the Constitution. The Constitution contains absolutely no section, and no language, about how it is to be interpreted. Each of the important Founders had his own take on some feature or another of it; they did not speak with a single voice, in spite of how much conservatives wish they had. Presidential power is only one of the areas of what I, at least, think of as permanent disagreement. Even the question of which part of the government should have the ‘final say’ is itself quite debatable. So I don’t expect consensus.
Now as for Obama’s miserable excuse for a foreign policy: I have absolutely no clue about his foreign policy views. His motivations and moves are either ill-conceived or, worse, unthinking. Most of the academic liberals in my world are horrified at his action in Libya; he has disappointed them in so many ways, and now he’s acting just like….George W. Bush!
Perhaps what he should have done was get some anger management specialist to drop in on Col. Ka-daffy and make him be nice.
I say: Let Sarkozy have his show. He’s sweating a re-election bid next year and his effort to show that the French can still kick ass has brought about some significant changes in his favor in French approval polls. My guess is that he wants to make sure that if his grand plan for his organization, the League of the Mediterranean ever gets off the ground, no one will forget that it’s a Francocentric organization. Now, for those on the Right who love conspiracies, consider this: The germ of Sarkozy’s dream was a proposal by the Russo-French philosopher Alexandre Kojeve back in the late 1940s, and Kojeve was a close friend and philosophical debating partner of Leo Strauss.
Phil,
I understood – just elaborating on my original comment. No offense taken!
To All,
Phillip…great to hear from you once again! I appreciate that several Commander’s-in-Chief have, in the past utilized their authority to commit troops. Some have consulted Congress first, some have come to the House afterward, and some haven’t bothered. President Obama set a new precedent. He waited for the UN to make a decision then ran with it. It appears as if he holds the decisions of that body as paramount. I’m not certain if he’s spoken with legislators about this at all. It smacks of the attitude; “Once the ‘world body’ agrees the discussion is moot as all is subservient to their ‘authority’.”
My major concern as a retired ‘jarhead’ is the possibility of American military service men & women may eventually be placed under the command of a foreign military commander. While I realize it looks as if the French have taken the lead role in the actual operation; they’re shooting up training jets on the ground (yeah French!); General Carter Ham was still the HMFIC as of Thursday.
A secondary concern is how to parse UN Resolution 1973. Libya’s air assets are miniscule. Most of the damage to the revolutionary combatants is being done by ground forces. My first question is can the UN resolution be construed as authorizing a ‘No Drive’ zone? Because the support the revolutionaries really need is against COL Kadify’s armor and artillery. And while we’re on the subject; if we go so far as to engage in air-to-ground support of these rebels; does that include softening up COL Kadifys’ defensive forces in and around those cities that COL Kadify’s forces re-took from the rebels two weeks ago. As per the resolution; he’s supposed to abandon those gains.
Whether or not the UN resolution establishes a ‘No-Drive’Zone, Col Ka-daffy’s armor is getting chewed up, so the people running the operation didn’t have any problems with doing that. But clearly the mission remains opaque–something characteristic of US military involvements for far too long. Although, as I stop and think, this mission could be clarified very easily if the decision is made to remove Ka-daffy’s regime. That’s much more clear than our mission in Afghanistan, which–I guess–is to keep killing bad guys until the Afghans run low on bad guys and–while we’re at it–build a stable democracy.
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