Paul added an amendment to a bill that would adopt as the “sense of the Senate” the following quote from candidate 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.”
Senate Majority Leader Harry Reid (D-Nev.) was having none of it, refusing to let the bill come to a vote. Sen. Paul wrote him a letter explaining why it was so important, which read in part:
The motion Senator Paul made has the vote as the pending business in the Senate, ready for a vote at any time. He did not ask for extended debate…
It will be the only 30 minutes spent on discussing and voting on whether or not the President has the power under the Constitution to attack another country without congressional authorization.
We believe the answer is that he does not. We also believe Congress has an obligation to stand up and declare whether or not we intend to hold the President to his constitutional oath…..
Voting for whether or not to send our sons and daughters to war is the most important and most difficult decision we should ever make as a nation and as senators. We do not take this responsibility lightly, and we believe the Senate is abdicating its responsibility at this very moment.
The bombing and military action against the Libyan government will be two weeks old by the time we return to session next week. That means congressional debate on this war is two weeks overdue.
Yesterday the Senate did vote—90-10—to table the proposal. It was, said Sen. Dianne Feinstein (D-Calif.), who was one of the 90, “too cute by half” to even rhetorically hold the president to either the views he was elected on, or to the Constitution. Paul said, of congressional pusillanimity on their warmaking powers, "The new motto of Congress appears to be, ‘Tread on me. Please, tread on me.’”
Not that it would have mattered to the Obama administration. Secretary of State Hillary Clinton had already told Congress that the executive would not feel constrained by any attempt by Congress to assert its authority. She magnanimously offered, though, for the legislative branch to become part of the team—“the administration welcomes the support of Congress in whatever form that they want to express that support."
The president can’t wage this war in Libya legally. The Constitution prohibits it, giving the power to start non-defensive wars unequivocally to Congress. So, theoretically, does the 1973 War Powers Resolution (WPR), even though it's far more forgiving of executive power than the Constitution.
Sec. 1541 of the WPR lists a specific set of circumstances under which a president can deploy combat troops. Libya doesn’t qualify. It says that minus specific congressional declaration or authorization the president needs “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
That didn’t happen. Even on a looser conception of “threat,” and although it’s obvious and didn’t need saying, Secretary of Defense Robert Gates admits that the Libya situation was no threat to the United States. (And while it has nothing to do with his authority to send American troops into action, even the president’s claims that he was stopping a reasonably expectable humanitarian catastrophe doesn’t hold up.) Still, the WPR goes on in Sect. 1544(b) to give the president carte blanche for 90 days worth of free warmaking. And presidents have mostly ignored the WPR since it passed anyway. Reagan sent troops into Lebanon and Grenada and bombed Libya without asking congressional sanction. On his own recognizance, Clinton hit Iraq, Somali, and Bosnia with American military might.
As detailed in Louis Fisher and David Grey Adler's 1998 article“The War Powers Resolution: Time to Say Goodbye," a fascinating essay on how the WPR gives presidents more war powers than they constitutionally deserve, various congressmen tried to sue the Reagan administration for violating the act, but courts dismissed the cases as beyond their jurisdiction.
Even Obama’s official notification to Congress that the Libyan intervention was beginning used the phrase “consistent with” the WPR, not “pursuant to"—a technicality that means that even the 90 day clock (60 days plus a 30 day extension) of unlimited presidential authority isn’t even technically triggered.