The Hill notes that Barack Obama appears to have fulfilled one of his campaign promises, which was to find a way to bring Democrats and Republicans together in Washington. Both caucuses have increased their criticisms of Obama’s Libyan adventure, with one Republican informing the White House that the US doesn’t keep a “King’s Army,” and a prominent Democrat demanding an immediate session of Congress to discuss the American intervention:
In a harshly worded statement Monday evening, Rep. Roscoe Bartlett (R-Md.) declared, “The United States does not have a king’s army.”
“President Obama’s unilateral choice to use U.S. military force in Libya is an affront to our Constitution,” said Bartlett, a senior member of the House Armed Services Committee.
Sen. Dick Lugar, the ranking Republican on the Senate Foreign Relations Committee and a frequent ally of the president on foreign policy, also called Monday for “full congressional debate on the objectives and costs” of military action in Libya — and a declaration of war if it goes on. ….
Rep. John Conyers (D-Mich.), the ranking member on the House Judiciary Committee, said Obama lacks the constitutional authority to conduct military operations in Libya.
“While the legislative and executive branches have long grappled over the exact division of powers in times of war, the Constitution grants sole authority to the Congress to commit the nation to battle in the first instance,” he said in a statement Monday night. “That decision is one of the most serious that we are called upon to make and we should never abdicate this responsibility to the President.
“I therefore join my colleagues on both sides of the aisle in calling for an immediate session of Congress to review United States military engagement in Libya.”
The Constitution is clear on this point. In Article I, Section 8, the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” exclusively belongs to Congress. In 1973, the War Powers Resolution gave the President the authority to deploy military forces in an emergency situation under certain circumstances:
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to
(1) a declaration of war,
(2) specific statutory authorization, or
(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
The act then states the requirement for consultation prior to and regular consultation after committing forces to war:
The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.
Jack Goldsmith at Slate argues that Obama’s action meets this standard, especially in relation to precedent, but was not particularly wise to “turn on a dime” without making sure Congress would follow:
In light of the long pattern of presidential unilateralism, Congress’ continued funding of a standing army in the face of this practice, and only very qualified restrictions in the WPR, it is hard to conclude that President Obama has acted unconstitutionally in his actions thus far in Libya. The best argument for the contrary conclusion is that no American lives or property, and no national security threat, is at stake; the Libya action seems purely humanitarian. Even if that were all it was, there are recent precedents for action, most notably Kosovo, but also Somalia, Haiti, and to some extent Bosnia. President Obama, moreover, indicated that the mission was more than humanitarian when he said that without it the “entire region could be destabilized, endangering many of our allies and partners” and the “words of the international community would be rendered hollow.” This last factor might be relevant because, as many executive branch legal opinions going back to the Korean War have maintained, the United States has a national security and foreign relations interest in effectuating the U.N. system that is implicated here, and the president may take that into account in deciding to use force.
The constitutional question will become much harder if the military action in Libya approaches the 60- or 90-day limit of the WPR without congressional authorization. (Congress should be careful about how it appropriates for Libya: In 2000, the Clinton Office of Legal Counsel opined that, despite the WPR’s specific proviso that authorization to continue hostilities after 90 days cannot be inferred from a congressional appropriation, Congress had in fact authorized the Kosovo intervention in an appropriation, and that this last-in-time indication of congressional intent trumped the earlier WPR.) Until he bumps up against the 60- or 90-day limit, the president can feel safe that he is acting constitutionally without getting Congress’ formal approval.
Which is not to say that he is acting wisely. There are powerful political reasons for presidents to seek congressional support, and many political risks from not doing so, especially if the military exercise drags on or goes badly. The Constitution establishes this system of political incentives, which causes most presidents most of the time (for example, George W. Bush, twice) to avoid large-scale or extended military actions abroad without first securing congressional approval. 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.
I could be wrong in my recollection, but I believe Bill Clinton went to Congress for his Balkan adventures before entering into hostilities. Somalia and Haiti started off as humanitarian missions, not combat missions, and Somalia only became the latter when American forces had trouble fulfilling the mission and encountered hostilities from the warlords. Whatever our rationalizations might be for attacking Gaddafi’s military, it’s obviously not starting as a non-combat humanitarian mission. A better analogy would be Ronald Reagan’s attack on Tripoli in 1986, but even that was predicated on an attack on American troops in West Germany through a terrorist attack at a discotheque staged by Libya.
In this case, no American forces were threatened, let alone attacked, before the start of hostilities. Goldsmith suggests that the US backing of the UN gives the executive a “foreign relations interest” in sending troops in support of its resolutions, but that would mean that any bilateral or multilateral alignment of the US would give a carte blanche to the executive for troop deployment into combat. The framers of the Constitution wisely kept authority for war powers separate from foreign policy jurisdiction in order to force American Presidents to get Congressional approval for the very purpose Goldsmith describes.
That said, the likelihood of Congress acting to remove or even rebuke Obama for exceeding his Constitutional authority is rather slim. They do seem intent on forcing Obama back to Washington to account for himself and to explain in much more detail the purpose, objectives, and resources of his Libyan war before it gets much further. Obama may have made a monumental error in finally awakening Congress into a defense of its own jurisdiction — and that may not stop with just the military.
Update: We’ve heard from the anti-war Left and Obama opponents on the Right. How about the middle? Olympia Snowe criticized Obama for both the intervention and the lack of consultation today:
“Given our extensive involvement in Iraq and Afghanistan, where we’re already stretched thin, now to be drawn into another international conflict …” the Maine Republican said.
Snowe said Obama has failed to provide Congress with the full picture of mission objectives and an exit strategy for Libya.
“He should be consulting with Congress,” Snowe said bluntly. “It raises concerns overall.”
Obama has lost the Left, the Right, and the chewy Center now, too. He still has John McCain, who now wants to impose a “no-drive zone.”