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.
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.
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