Libya and the President's War Powers
The Wall Street Journal was kind to carry my op-ed today defending the constitutionality of Obama's decision to impose a no-fly zone over Libya. My view is that the constitution does not assign Congress the sole power to decide on hostilities, but instead leaves it open to the political process, with the President having the first mover advantage because of its structural advantages.
I have other concerns about how the Obama folks are managing the intervention, but that is a policy, not legal, issue.
I know some Ricochet contributors favor the idea that Congress's power to declare war must mean the sole power to start war. So in an experiment, I am going to post a variety of pieces of evidence, one by one, from the Framing period that support my side of things. I welcome discussion about the meaning of all of these facts, as well as why others should receive greater precedence.
Of course, if one thinks the Constitution ought not be interpreted according to its original understanding, this is all besides the point. But then a) you are probably not a conservative, and b) you follow a more contemporary, living Constitution approach, which means you already agree with the way presidents have waged war for decades.
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Jan '11
Re: Libya and the President's War Powers
I'll be happy to entertain any examples, so long as you offer an answer to this question: exactly what role does Congress play? To say that they don't have exclusive power to start a war leaves open the question as to what role they actually play.
And if you claim that the Founders expected a political struggle about the decision to go to war, that contradicts the notion that the president can start a war and then inform Congress, as Obama has done. It's unrealistic to expect a struggle when one institution can start a war anyway.
As always, though, I'm open to persuasion. But the argument in front of us right now doesn't add up.
Jul '10
Re: Libya and the President's War Powers
KC, Congress decides to provide funds, or not.
Jul '10
Re: Libya and the President's War Powers
The initiation of force without consultation was an unforced error on Obama's part. I presume that Presidential duties were starting to cut into his private time, and that he has addressed that now. Clinton nailed it with that 3AM call ad!
Dec '10
Re: Libya and the President's War Powers
I'm beginning to think the legalistic concept of making a formal declaration of war may be obsolete, but I'm not familiar with its history.
Has any nation in the world "declared war" on another since WW II?
Isn't the concept of European origin, and a historically relatively recent one rooted in the concept of sovereign nation states? Haven't non-European nations historically just attacked when they wanted to make war, without bothering with legalistic formalities?
What does a declaration of war actually do under the US Constitution? What extraordinary powers does it give the Executive branch? Can Congress decide to undeclare a war after having declared it?
Jan '11
Re: Libya and the President's War Powers
So how does that work in the real world? The president starts a war, and our guys start shooting. But then Congress doesn't provide funds.
What do we say? Stop shooting? And to the enemy, what do we say? Sorry? Please overlook those first few victims of yours? Once the president authorizes a soldier to shoot, it's unrealistic to think that the fighting can stop.
The decision to go to war is where the whole game is. My question is, what role does Congress play in the decision to go to war? John has (correctly, I agree) established that Congress doesn't have an exclusive right. But then that doesn't mean that Congress has no rights, or no role to play in the decision.
What role does Congress play in the decision to go to war? And if no role, why did the Founders place the authority to declare war with Congress, and not the executive? They must have had some reason for giving it to Congress.
May '10
Re: Libya and the President's War Powers
Didn't you get the memo. It's not a war. It's "Kinetic Military Action".
http://washingtonexaminer.com/blogs/beltway-confidential/2011/03/white-house-libya-fight-not-war-its-kinetic-military-action
Those silly founding Fathers weren't privy to the latest in Liberal spin...
Dec '10
Re: Libya and the President's War Powers
Someone needs to define "war" in Constitutional terms. Maybe Professor Yoo can do that.
Dec '10
Re: Libya and the President's War Powers
Going to war is the prerogative of the Executive, because Congress, by definition, was expected to be scattered, geographically. The Framers never intended Congress to be involved in going to war. Were Congress to have an issue with the Executive action, they could always defund the Executive's decision. That's exactly what occurred in 1975, when we abandoned South Vietnam; despite negotiated treaties that were ratified by the Senate, the Senate (Edward Kennedy presiding), stripped the funding from the Senate-ratified treaty.
The Framers never intended Congress to have authority over going to war, but Congress always had the ability to convene conveniently and reconsider the decision of the Executive, afterwards, and apply the power of the purse.
Even the War Powers act of 1973 didn't change that. Even under that "act", (never signed by any President, Democratic or Republican), Congress only came in later and could disagree at 60 and 90 day timelines. They can do that without the "act". They can just pass a bill and defund any action.
Prior to 1973, this was never a subject of discussion and since 1973, nothing has changed. Congress can defund at any time.
May '10
Re: Libya and the President's War Powers
Kozak: Didn't you get the memo. It's not a war. It's "Kinetic Military Action".
http://washingtonexaminer.com/blogs/beltway-confidential/2011/03/white-house-libya-fight-not-war-its-kinetic-military-action
Those silly founding Fathers weren't privy to the latest in Liberal spin... · Mar 25 at 4:09pm
Perhaps not, but the Founders were privy to waging war without declaration: Thomas Jefferson (Barbary pirates 1801-1805), James Madison (Barbary pirates 1815), and John Adams (Quasi War with France 1798-1800).
Jan '11
Re: Libya and the President's War Powers
May I also register a small complaint? The moment we see constitutional questions, I immediately rush to my trusty reference book, The Heritage Guide to the Constitution. Then I looked up this issue, and guess who has all the articles on these issues?
John Yoo and James Ho.
Talk about a rigged game ...
(PS: I base my whole argument on the objection that withholding resources after the shooting has started strikes me as a completely unrealistic alternative. Then again, the "logic" behind government has never come naturally. It may very well be.)
Dec '10
Re: Libya and the President's War Powers
KC, I feel the same way, having just finished Professor Yoo's WSJ article.
And, he made the further point I wanted to mention, that the 200 word limit would not allow; war by committee was not favored, at the founding. We are seeing why.
May '10
Re: Libya and the President's War Powers
Well that's kinda the problem with Heritage. You don't even have to look past their headlines to know what they say.
Dec '10
Re: Libya and the President's War Powers
What is the "problem"?
May '10
Re: Libya and the President's War Powers
Let's just say there's a reason why Heritage's proposals are virtually never implemented. Unlike, say, AEI.
Oct '10
Re: Libya and the President's War Powers
I have no quibble with your thesis, John, My concern is more with the politics and the policy, not the Constitution. Every President who has sent American forces into harms way has felt himself justified in doing so. But the President needs to be accountable to the Congress as the political body representing the people. When the President acts he acts as the executive of the public, not a private individual, and therefore needs to act in concert with the will of the people. The Congress is the people's check on the power of the President. I hope that the People's House and the State's House call Mr Obama into account and demand that he set forth a detailed strategic and tactical operational plan for Libya post haste.
Dec '10
Re: Libya and the President's War Powers
So you assert there is a problem with Heritage but you do not want to explicitly state what it is.
May '10
Re: Libya and the President's War Powers
Clearly you have a man-crush on Heritage. I just don't want to be rude.
Oct '10
Re: Libya and the President's War Powers
KC Mulville So how does that work in the real world? The president starts a war, and our guys start shooting. But then Congress doesn't provide funds.
What do we say? Stop shooting? And to the enemy, what do we say? Sorry? Please overlook those first few victims of yours? Once the president authorizes a soldier to shoot, it's unrealistic to think that the fighting can stop. · Mar 25 at 4:04pm
It's not unrealistic to defund combat operations. It happened with Vietnam and the Democrats were making that case when it came time to vote on the appropriations bills that provided the funding needed for the operations. Usually wars aren't factored into a budget and so there has to be funding prepared in advance. I imagine we have a certain amount of money that will allow us to go only so far before the President has to go to Congress for a supplemental. That's what Bush did during Iraq.
Jan '11
Re: Libya and the President's War Powers
Well, for the record, defunding that war years after it started was a travesty. I think the aftermath of the Vietnam cutoff goes more to prove my point.
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I've done some reading since the earlier post, and I have to retract something. The Heritage article reminds us that there was no standing army at the time of the Founding. Fighting was carried out by militias, or even hired troops; they called an army only when needed. Congress did have the power to raise and create armies (plural) and a navy (singular).
Therefore, Congress didn't fund or defund the war itself. They funded (or defunded) individual military units. Does that spell the difference? Still thinking about it...
I said at the beginning of this that I was willing to be persuaded, but that it didn't make sense to me. How could Congress be empowered to declare war, but have no say in the decision to go to war? The declaration would seem to be perfunctory, if declaring war was merely a legal ritual.