Skip to comments.Is Obama's Use of Military in Libya Constitutional?
Posted on 03/23/2011 9:43:09 AM PDT by Kaslin
Leave aside for a moment whether it was wise for President Obama to order our military to intervene in Libya's civil war, siding with rebels we know little about against a dictator who has sponsored terrorism against us.
A more fundamental question comes first: Did Obama have constitutional authority to do it? President Washington's actions counsel otherwise.
In responding to Indian raiders, Washington repeatedly declined to order offensive -- as opposed to defensive -- military action because Congress had not approved it, as he believed the Constitution required.
In 1792, William Blount, governor of the territory that became Tennessee, wrote to Secretary of War Henry Knox complaining of aggression by Chickamauga Indians.
"The Congress which possesses the powers of declaring war will assemble on the 5th of next Month -- Until their judgments shall be made known it seems essential to confine all your operations to defensive measures," Knox wrote Blount, as recorded in Louis Fisher's excellent book "Presidential War Power."
A month later, as Fisher notes, Knox wrote Blount: "All your letters have been submitted to the President of the United States. Whatever may be his impression relatively to the proper steps to be adopted, he does not conceive himself authorized to direct offensive operations against the Chickamaggas. If such measures are to be pursued they must result from the decisions of Congress who solely are vested with the powers of War."
A year later -- in a letter Fisher also cites -- Washington personally addressed the issue in a letter to South Carolina Gov. William Moultrie. The problem now was what Washington called "the refractory part of the Creek Nation."
"The Constitution," Washington advised Moultrie, "vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure."
Why was Washington so deferential to Congress in the use of force? Because he had presided over the Constitutional Convention and knew what the Constitution meant.
Washington was the original originalist.
As reflected in Max Farrand's Records of the Federal Convention and noted in Fisher's work, the Framers made clear they were giving Congress, not the president, the authority to initiate hostilities.
On June 1, 1787, James Wilson, whom Washington would later name to the Supreme Court, said, according to James Madison's notes: "He did not consider the Prerogatives of the British Monarch a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace &c."
On Aug. 17, 1787, the convention debated the draft of the war power, which gave the president no authority at all to initiate hostilities. It said Congress shall have the power "to make war."
Early in the debate, South Carolinian Pierce Butler did suggest empowering the president to start wars. "He was for vesting the power in the President who will have all the requisite qualities, and will not make war but when the Nation will support it," Butler said, according to Madison's notes.
Madison then joined Elbridge Gerry of Massachusetts in proposing an amendment that would give the president the authority to use force without congressional authorization only when necessary to counter a sudden attack.
"Mr. M(adison) and Gerry moved to insert 'declare,' striking out 'make' war; leaving to the Executive the power to repel sudden attacks," Madison recorded.
Roger Sherman of Connecticut agreed with Madison and Gerry that the president "shd be able to repel and not to commence war," but wanted to keep it that Congress shall have the power to "make" war.
Gerry then registered shock at Butler's suggestion that the president be given the power. "Mr. Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war."
George Mason, Washington's Virginia neighbor, expressed a similar view. "Mr. Mason was agst giving the power of war to the Executive, because not (safely) to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred 'declare' to 'make.'"
The convention voted for Madison and Gerry's amendment, leaving the president the limited power to "repel sudden attacks." The Constitution gave Congress the power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."
In Federalist 69, Alexander Hamilton explained that the president's power as commander in chief "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."
As for the wisdom of Obama's intervention in Libya: Obama was not repelling a sudden attack on the United States. In announcing his move on Libya, he did not cite our Constitution. He said "the writ of the international community must be enforced." Had Obama submitted his plan for congressional approval, as our Constitution demands, it would have been subject to review not by foreign governments but by 535 Americans who themselves would be subject at election time to the wisdom of our whole people.
According to Baraq Obama and Joe Biden: Of course it's Constitutional, because Obama is not a Republican.
A Kenyan born citizen can declare war when ever he wants.
He’s not bound by our constitution.
Substitute “Bush” for Obama and ask the question.
The War Powers issue is a non-starter for me. All Presidents have done the same thing that Obama did.
We need to reign in the Executive power back to its Constitutional bounds and this includes the power to wage war. Arbitrarily starting wars is a sign of dictatorship regardless of the party in power.
The problem is Congress won’t enforce its own War Powers Act and the people, not touched by war’s devastation and loss, are blissfully ignorant.
Not in the United States of America.
Maybe in France?
It’s rather silly to ask if a usurper’s actions are constitutional. If Obama was qualified for the job, then his actions would be legitimate, despite his questionable capabilities and motives.
Since I am unaware that they have, please give me examples. I don’t think Clinton did, but Bush and Bush Jr. got Congressional approval.
The House of Representatives holds the funding for any such operation. If they don´t like it - and they were purposely ignored for the Libya operations - they can cut off funding any time.
THANK YOU!!! That is my first thought every time I see some insidious reference to the constitutionality of anything this usurping poe does.
Is Bush's Use of Military in Libya Constitutional?
When exactly did President Bush, either one of them, invade Libya?
All Presidents have done the same thing that Obama did.
Who did President Bush invade/bomb with only a single protracted UN resolution, 2 "broad coalition" partners and no discussion with congress, let alone their approval?
Seriously...who and when? I must have been in a coma at that time.
Care to back that up with facts? Bush never did 'the same thing.'
“We need to reign in the Executive power back to its Constitutional bounds and this includes the power to wage war.”
Absolutely. Just because other Presidents before him have done it, Doesn’t excuse it. There’s nothing In Libya to win. Libya this week, What’s Next?
Rhode Island? Texas?
Obama should be impeached.
Poor O’Reilly spun like a top earlier this week as Dennis Kucinich tutored him on the constitution.
O’Reilly’s inclination was to blow off the Constitution, but poor, old, liberal Kucinich spoke the truth. Congress alone has the power to make war.
The president is, essentially, General-In-Chief.
What Obama did is unconstitutional. He never consulted congress and launched military action against a country that has not attacked us.
He also ceded our sovereignty to the UN, thus violating his oath to preserve, protect and defend the constitution.
Now is it the right thing to do, offering military support in another countries civil war? That could and should be debated, and there is no easy answer.
Hang on people. What I read is that Barry has to notify Congress within 48 hours after ordering the strike which apparently he has. It is now up to Congress to approve or deny the declaration of war. Let’s hope he gets the thumbs down. I think all this rant of impeachment based on not consulting Congress is not holding water. Am I right?
The War Powers Act of 1973 gives him 60 days to seek approval from the House or withdraw the troops.
In this one regard, he has done nothing unconstitutional.
“...he has done nothing unconstitutional.”
The act of ordering military action with circumstances that the US, nor US interests were attacked initially is unconstitutional.
He used the excuse of a UN resolution.
That resolution belonged to the US Congress to debate, and authorize any action, NOT the President.
It was absolutely unconstitutional and he needs to be impeaches
Wrong. If we aren’t attacked, and the basis of the intent to enter into military hostilities against another Nation is a UN resolution as has happened here, then it’s totally up to Congress to debate, and authorize that action, NOT the President.
If Libya had attacked the United States, or United States interests then the President can order immediate action to protect us, and/or our interests, and notify Congress the details within a specified period of time.
And they should
Since when has the Constitution stopped a President from going to war?
Grin....is your tongue cramping stuck in that cheek?
Our Presidents immediate family is there. The president could not allow that to happen.
It seems we out grew our Constitution when we elect the Islamic Messiah.
The notification is under the War Powers Act and is not a formal declaration of war, which requires affirmative action by Congress. There will be criticism of Obama but no impeachment talk of consequence or even a serious effort to cut off funds for operations against Libya. Few in Congress want to become responsible for the ill effects of leaving Khadafi in power.
I disagree. You may contractually give away any of your Constitutional rights that you desire and Congress may do the same. They, however, cannot do it for you, so I agree with your example of unconstitutionality.
If we enforce our constitution we could be infringing on our presidents rights and obligations as a Kenyan Citizen.
At this point its probably best to continue to let Obama dictate the application of international law over our Constitution.
“What if Libya had imminent plans to Nuke Kenya?”
There is no evidence, and as President he is still bound to the Constitution regardless.
As a Democrat though..........
No...they have not. Name one that did.
btw, I personally do not believe that Obama violated the Constitution by attacking Iraq. I was simply drawing attention to the hypocrisy of those in power now.
That is not true, and you damn well know it.
First of all there was the Iraq liberation act of 1998 from the 105th Congress Source
And unlike the arrogant pos, who currently resides at 1600 Pennsylvania Ave. President Bush went to Congress and Congress authorized President Bush to use force against Iraq, pursuant to the War Powers Resolution, in Public Law 107-243.
0bama never went to Congress, instead he want to Brazil to give Brazil $3 billion so they can drill offshore, while our oil companies are prevented from drilling in the Gulf.
No. Next dumb question.
If you are asking for violations of the War Powers Act, Ronald Reagan did not get Congressional approval (and rightly so) before invading Grenada. He basically ignored the Act because it was unconstitutional. The difference with Obama is that he actually cited the War Powers Act in his electronic notification to Congress (which was actually received after the 48-hr deadline).
Reagan did not acknowledge the legitimacy of the War Powers Act, and acted accordingly. Obama does acknowledge the legitimacy of the War Powers Act, and by default is bound to honor it - not grounded on legality but by integrity.
If Kenya comes under attack, Obama is obliged to defend.
Waiting for a Declaration of war would be treasonous to his family and fathers country.
I would give him a pass for Defending Kenya. If my Dad and all his family was from Kenya, I would nuke any country that dared touch it. In a heart beat. No declaration of war.
Grenada wasn’t the same situation or similar military action.
Are you saying that the War Powers Act applies to Libya, but not to Grenada?
I really appreciate the link. I’ve read the War Powers Act and see where “the meaning of “is” is” mentality at play here.
But I always appreciate factual links.
I posted this to a related article - I am not happy about it but it still requires interpretation (lawyer not I am - victim yes).
USC TITLE 22 > CHAPTER 7 > SUBCHAPTER XVI > § 287d
In this code is written -
The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein
Articles 41,42 and surrounding available here.
I guess we have an article 42 in effect which does not require congressional input.
The War Powers Resolution needs work to clarify procedures in events such as this. I see no reason why the code cannot be modified so as to require Congressional consultation (not just advisement) in situations such as this.
Some suggestion are given in pages 44-48 in CRS RL32267
I like the idea of a Consultation Group described therein.
The whole issue is confused - or in my case confusing.