Constitution Daily

Smart conversation from the National Constitution Center

Libya, war powers, and the power of persuasion

March 25, 2011 by Dr. Steve Frank


“Happy families are all alike; every unhappy family is unhappy in its own way.”

-- Leo Tolstoy, Anna Karenina

To borrow a famous phrase from Tolstoy, declarations of war are all alike, but every presidential decision to launch military operations without congressional approval courts controversy in its own way.

Photo by by شبكة برق | B.R.Q
Protesters opposed to leader Muammar Gaddafi chant slogans in the city of Zawiyah

It’s a maxim for every modern president, and one that now applies to President Obama.

The President is responding to bipartisan criticism for acting outside the Constitution when he ordered the American military to join in attacks on Libyan air defenses and government forces.

Several Republican lawmakers, including Senators Richard Lugar of Indiana and Rand Paul of Kentucky, have criticized him for exceeding his constitutional authority. They have been joined by some Democrats, including Rep. Dennis Kucinich (D-Ohio), who on Monday upped the rhetorical ante, saying that Obama’s decision “would appear on its face to be an impeachable offense.”

The criticism from all sides gives ironic meaning to the old saw about partisanship stopping at the water’s edge when it comes to national security. What the controversy really illustrates, however, is that when it comes to national security, the Constitution invites struggle between the executive and legislative branches.

Obama has been accused of hypocrisy for a comment he made as a presidential candidate in December 2007 about the use of military action to stop Iran from building nuclear weapons. Asked by the Boston Globe, “In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress?” Obama 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.”

From where he sat then – in the Senate – Obama responded as the Founding Fathers intended. And we shouldn't be surprised that he sees things differently now.

We shouldn't be surprised that Obama sees things differently now.

In order to separate the power to initiate war from the power to carry it out, the Framers of the Constitution famously divided war-making authority between Congress and the President. Congress may declare war and has the power to pay for it; the president is the commander-in-chief.

Numerous constitutional provisions suggest that the Framers meant to subject military affairs to close congressional regulation. Army appropriations, for instance, dry up after two years, requiring a fresh vote in Congress to keep the money flowing. That’s one reason why members of Congress read their power to declare war broadly, to suggest that any decision to initiate hostilities requires their prior approval.

Ever since President Harry S. Truman went to war in Korea without going to Congress, the question of whether presidents may initiate military action as commander-in-chief has been a constitutional struggle, with presidents claiming broad authority and Congress attempting to rein them in.

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In 1973, Congress, having lost its appetite for the war in Vietnam, enacted the War Powers Resolution, which directed presidents to get congressional authorization to send troops into combat except in an emergency (in which case troops must be withdrawn after 60 or 90 days unless Congress gives retroactive approval).

President Nixon vetoed the measure, and no president since has acknowledged its constitutionality, which has never been tested in court.

As a consequence, presidents have continued to send the military into action without prior congressional approval, as when George H.W. Bush intervened in Somalia in 1992 and Bill Clinton ordered the bombing of Kosovo in 1999. More recently, President George W. Bush frequently invoked his authority as commander-in-chief to argue that neither Congress nor the courts could regulate his conduct of the war in Iraq.

That’s not a precedent that Obama is likely to invoke. But if he looks a little farther back, history can guide him.

All military interventions are not alike, and the ones that court the least controversy and most public support, at least initially, are the ones where the president has acted with tacit congressional consent.

On the eve of the Korean War in 1950, President Truman conferred in the Cabinet Room with the Secretary of State, Secretary of Defense, Joint Chiefs and the leaders of Congress. According to historian David McCullough, no one at the meeting said a word against what Truman had already decided. In fact, he was advised to proceed on the basis of presidential authority alone and not bother to call on Congress for a war resolution.

When the decision for war was announced, cheers broke out in the House and Senate.

The Constitution may or may not give President Obama the power to unilaterally initiate military actions. But as the Truman example suggests, bringing along Congress and the American people is clearly his responsibility as commander-in-chief.


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