No Comment — May 19, 2011, 11:23 am

Congress and the War Powers

When the 112th Congress convened on January 3rd, the new Republican leadership made a great show of respecting the Constitution. In the House, the text of the Constitution was read, with a handful of curious emendations. Today, we can see just how serious the new Congress is about its constitutional duties. In a breathtaking abdication of constitutional responsibility, they are allowing the 60-day period under the War Powers Act to expire without taking any action, either affirmative or negative, with respect to U.S. military operations in Libya.

No responsibility weighs more heavily on the nation’s leaders than the power to make war. In the course of the Constitutional Convention of 1787, how this power was to be divided between the executive and the Congress was a matter of intense discussion. Virginian George Mason seemed to grasp the sense of the delegates: the president was “not to be trusted” with war-making powers. Like his compatriot James Madison, Mason believed that a president with unfettered war-making powers would soon emerge as an autocrat. Neither, he felt, could the power simply be balanced with the requirement of Senate approval, because the Senate was not structured in a way to do this. Rather, Congress as a whole needed to act in order to force a full and proper vetting of the question of whether war should be waged. As Mason explained, “he was for clogging rather than facilitating war.” And so, to be sure, is the Constitution, properly construed.

Congress has had a long history of wrestling with the president over the war-making power. In the Nixon era, Congress enacted the War Powers Act to demarcate presidential and congressional authority in the area. The measure gave the president sixty days to act before seeking congressional authorization for military activities abroad. Nixon vetoed the act, and Congress enacted it over his veto. Subsequent presidents have behaved coyly, seemingly complying with the Act without explicitly acknowledging it as a limitation on their powers. The Libyan operations provide perhaps the clearest test of these boundaries in modern times.

Ironically, as day sixty arrives for Libya, Congress is indeed engaged in discussion of the authorization of military force–with respect to the war against Al Qaeda and the Taliban. Of course, in the week after September 11, Congress granted the president this power. The current effort is an act of G.O.P. political grandstanding that serves no practical purpose, other perhaps than to support their vision of warfare without limits in time and space. It is typical of Washington today that shrill voices of the war party support this measure as they ignore Congress’s affirmative duty to come to grips with an unauthorized military campaign in Libya.

Reasonable and well-informed citizens may disagree about whether the current military adventure in Libya is right or wrong. But the pros and cons of that campaign need to be carefully and publicly deliberated as part of a process aimed at forming democratic consensus. War-making should not be the simple and unchallenged prerogative of the executive. This is what the Constitution says, and it is what common sense demands of any democratic society.

Yesterday, former Congressmen Mickey Edwards and David Skaggs, supported by a number of constitutional scholars, wrote to President Obama arguing that “[t]he Constitution requires the President to obtain the authorization of Congress prior to initiating the use of force abroad except for a limited range of defensive purposes. None of these purposes was present in the reasons you gave for your unilateral determination to use force in Libya.” They encouraged Obama to seek explicit congressional authority for his operations in Libya.

Speaking as a candidate, then-Senator Obama made clear that “[t]he 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.” That squarely applies to the operations in Libya. But as president, Obama appears to have adopted a quite different view. As Charlie Savage notes, the president is far more likely to adopt the approach taken by President Clinton, according to which congressional appropriations implicitly amount to an authorization of his military operations.

In Federalist No. 51, James Madison wrote that each branch “should have a will of its own,” each must possess “the necessary constitutional means and personal motives to resist encroachments of the others.” That means that the responsibility rests with Congress to assert its war-making prerogatives. Failing to do so, it effectively solidifies the unilateral war-making power of the Executive. Mark this date: on May 19, 2011, Congress blinked.

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