I don't think there is any question that the wrongheaded involvement in the Libyan uprising has been handled unconstitutionally. But then again, it is perfectly in line behind all of the other unconstitutional wars, large and small, we have waged since 1950.

I am not alone in this thinking, of course, and Michael Ramsey at Opinio Juris has a nice concise discussion of the constitutionally of U.S. war in Libya. He concludes:

"Perhaps, though, the President also has power to declare war (after all, the Constitution expressly says only that Congress has it, not that the President doesn’t, and it could be part of the President’s power as commander-in-chief). Returning to Hamilton, a key passage in his Federalist 32 argued that often constitutional power could be held concurrently by different entities. But, he continued, an exclusive grant of power would arise where concurrent power would be “totally contradictory and repugnant” – that is, when one branch’s exercise of a power would wholly undermine an express grant to another branch. Hamilton didn’t give the example of declaring war here, but it fits his model: war, once launched, cannot be undone without consequences. If Congress’ power is to decide when war should begin, it follows that the President cannot independently launch attacks.

And the Constitution’s drafters expressly described the clause as designed to exclude presidential war-initiation power. James Wilson told the Pennsylvania ratifying convention: “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

As a result, the founding generation’s views are clear and have firm basis in the Constitution’s text: the declare war clause gives Congress the exclusive power to decide when war should be “declared” – meaning begun by “word or action.” In Libya, President Obama has “declared” a war – a limited one, to be sure, but still a war by 18th century definitions – without congressional approval. That contravenes both the Constitution’s text and the founding era’s consensus understanding."

Jack Goldsmith has a different view and, characteristically, he states it with clarity. He lists the various similar unilateral military actions, beside Korea and Kosovo, he lists Haiti (2004), Bosnia (1995), Haiti (1994), Somalia (1992), Panama (1989), Libya (1986), Lebanon (1982), and Iran (1980), then notes

"Critics will claim that a pattern of consistently violating the Constitution cannot remedy the illegality of these actions. But that is not the right way to view this pattern. An important principle of constitutional law—especially when the allocation of power between the branches is at issue—is that constitutional meaning gets liquidated by constitutional practice."

He concludes that:
"It does not appear that President Obama gave the issue of domestic political support much thought when he turned on a dime last week. This is an astonishing oversight, if it was that, from a man who campaigned on the need for retrenchment and prudence in the use of U.S. military force."

Correct me if I am wrong, but didn't G.W. Bush run on a similar claim in 2000, back in his anti-Wilsonian days? Power gets awfully compelling when you have the levers in your hands.


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