Tuesday, March 22, 2011

Libya...and the Constitution

I'm not going to get into the pros and the cons, I'm not a Mideastern expert.  But what I would like to explore a bit is the process by which we began to hurl Tomahawk missiles at COL Kaddafi's air defenses.

I will simply never understand the view that the Constitution allows the President unilaterally to commit the nation to prolonged military conflict in another country -- especially in non-emergency matters having little to do with self-defense -- but just consider what candidate Barack Obama said about this matter when -- during the campaign -- he responded in writing to a series of questions regarding executive power from Charlie Savage, then of The Boston Globe:

Q. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites -- a situation that does not involve stopping an IMMINENT threat?)

OBAMA:  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.

As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent.

Article 1, Section 8 of the Constitution of the United States, reserves to Congress the power to declare war.  For some reason President Obama did not seek such a declaration from Congress, nor has Congress taken any concrete steps to debate the notion of military enforcement of a Libyan no-fly zone.

Matt Yglesias has more.  He also points out the same disconnect above between Obama's words then, as a senator, and now, as the President.  Matt then goes on to talk about the abdication by Congress of the authority to use our military:

But the one observation I would make about this, is that while the trend toward undeclared military incursions is often described as a kind of presidential "power grab" it's much more accurately described as a congressional abdication of responsibility. Even if you completely leave the declaration of war business aside, congress' control over the purse strings still gives a determined congressional majority ample latitude to restrain presidential foreign policy. The main reason congress tends, in practice, not to use this authority is that congress rarely wants to. Congressional Democrats didn't block the "surge" in Iraq, congressional Republicans didn't block the air war in Kosovo, etc. And for congress, it's quite convenient to be able to duck these issues. Handling Libya this way means that those members of congress who want to go on cable and complain about the president's conduct are free to do so, but those who don't want to talk about Libya can say nothing or stay vague. Nobody's forced to take a vote that may look bad in retrospect, and nobody in congress needs to take responsibility for the success or failure of the mission. If things work out well in Libya, John McCain will say he presciently urged the White House to act. If things work out poorly in Libya, McCain will say he consistently criticized the White House's fecklessness. Nobody needs to face a binary "I endorse what Obama's doing / I oppose what Obama's doing" choice.

Which is all just to say that presidents will go back to accepting congressional authorization for the use of force as a binding constraint when congress starts actually wanting that authority.
Take a stand, Congress, that's why you're there!


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