“[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;” – United States Constitution, Article 1, Section 8, Clause 11
Once upon a time, the United States Congress had the sole authority to send U.S. troops to war. They would issue a formal declaration of war (or, occasionally, some other type of authorization) and, after Congress had done their part, the president would execute the war as the Commander-in-Chief of our military forces. This pattern was followed without exception until after World War II.
Most wars since have followed some new, extra-Constitutional process . . . one with no clear ground rules, no clarity, and no consistency. Sometimes, wars have been authorized by Congress under resolutions that authorize the use of force, but don’t identify themselves as declarations of war and have sometimes been issued after hostilities have already begun. Wars authorized by Congress in this way include the Vietnam War, Persian Gulf War, War in Afghanistan, and War in Iraq. Other wars, however, enjoyed no such Congressional authorization and were waged unilaterally by the president under his own authority, or under the authority of the United Nations. Unauthorized wars include the Korean War, Bosnian War, and ongoing War in Libya.
The Constitutional reality is that wars formally declared by Congress are legal, wars explicitly authorized by Congress (but not formally declared) are probably legal but not clearly so, and wars executed by the president without Congressional approval are illegal. The President’s authority as Commander-in-Chief does not authorize him to unilaterally send troops to war; if it did, why would the Constitution have explicitly reserved the power to declare war to Congress? Where would the checks and balances be? Giving the president full-rein over the decision to go to war would be to instill him as a military tyrant. I am 100 percent certain that is not what the founders had in mind.
Congress tried to limit this post-WWII executive supremacism with a compromise position, the War Powers Resolution of 1973. Under the resolution, the president must notify Congress within forty-eight hours of sending troops into combat, and must have the action supported by a Congressional declaration of war or other authorization within sixty days. If Congress does not authorize the action within the sixty day period, the president then has only thirty days more to bring the troops home and disengage. The law—which was passed by a Congressional super-majority over President Richard Nixon’s (R) veto—has been generally ignored by Presidents of both parties and repeatedly condemned as unconstitutional. It isn’t. Congress has the power to make laws dealing with its areas of authority, and declarations of war (and, by extension, the process by which those declarations happen) are one of the enumerated powers.
In fact, the War Powers Resolution is quite generous. It grants the president much more authority than a proper ‘strict constructionist’ reading of the Constitution would give him otherwise. In the absence of the law, Presidents would only be permitted to commit U.S. troops in direct defense against attacks on U.S. territory. Any foreign entanglements would only be permitted after being authorized by Congress. The sixty day carte-blanche on military activity is a gift to the executive branch, a willing transfer of an enumerated power from the Congress to the president. It is a real exercise in absurdity to call it an unconstitutional limitation on Presidential authority when it is, in fact, the exact opposite.
So what of the War in Libya? President Barack Obama’s (D) sixty days expired today. He has not attempted to get Congressional approval for the war, nor has he articulated any plan for disengaging in the next thirty days as required by law in the absence of that authorization. Instead, he has claimed that U.S. involvement in the war is so ‘minor’ that no authorization is needed—an argument with no basis in law or fact. For the record, I generally support our military involvement in Libya, but the president must execute that action in accordance with the U.S. Constitution (which he is sworn to uphold). Obama must get Congressional authorization, or get our forces out of the War in Libya.